Environmental Planning and Assessment Regulation 2000
Historical version for 8 July 2005 to 31 July 2005 (accessed 2 June 2020 at 07:01) Current version
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Historical version for 8 July 2005 to 31 July 2005 (accessed 2 June 2020 at 07:01)
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File last modified 8 July 2005.

Part 1 Preliminary
1   Name of Regulation
This Regulation is the Environmental Planning and Assessment Regulation 2000.
2   Commencement
This Regulation commences on 1 January 2001.
3   Definitions
(cf clause 3 of EP&A Regulation 1994)
In this Regulation:
alternative solution has the same meaning as in the Building Code of Australia.
approval body has the same meaning as in section 90A of the Act.
assessment method has the same meaning as in the Building Code of Australia.
Australian Rail Track Corporation Ltd means the Australian Rail Track Corporation Ltd (ACN 081 455 754).
BASIX affected building means:
(a)  a dwelling-house (that is, a building comprising one dwelling and nothing else but structures ancillary to the dwelling), or
(b)  a dual occupancy building (that is, a building comprising 2 dwellings and nothing else but structures ancillary to those dwellings), or
(c)  a guest house, boarding house, lodging house or hostel (including a backpackers hostel), being a building with a gross floor area of less than 300 square metres,
but does not include:
(d)  one of 3 or more dwelling-houses (comprising a single development) to be erected on land the subject of a development application or development consent for subdivision under:so as to create a separate lot for each such dwelling-house, or
(e)  one of 2 or more dual occupancy buildings (comprising a single development) to be erected on land the subject of a development application or development consent for subdivision under:so as to create a separate lot for each such building.
BASIX certificate means a certificate issued by the Director-General under clause 164A.
building premises, in relation to a building, means the building and the land on which it is situated.
Category 1 fire safety provision means the following provisions of the Building Code of Australia, namely, EP1.3, EP1.4, EP1.6, EP2.1, EP2.2 and EP3.2 in Volume One of that Code and P2.3.2 in Volume Two of that Code.
Category 2 fire safety provision means the following provisions of the Building Code of Australia, namely, CP9, EP1.3, EP1.4, EP1.6, EP2.2 and EP3.2 in Volume One of that Code.
Category 3 fire safety provision means the following provisions of the Building Code of Australia, namely, EP1.3, EP1.4, EP1.6, EP2.2 and EP3.2 in Volume One of that Code.
class, in relation to a building, means:
(a)  in a provision of this Regulation that imposes requirements with respect to a development consent, the class to which the building belongs, as identified by that consent, or
(b)  in any other provision of this Regulation, the class to which the building belongs, as ascertained in accordance with the Building Code of Australia.
Class 1 aquaculture development means development of the kind referred to in clause 5 (1) (d).
concurrence authority means a person whose concurrence is, by the Act or an environmental planning instrument, required by the consent authority before determining a development application.
contributions plan means a contributions plan referred to in section 94EA of the Act.
deemed-to-satisfy provisions has the same meaning as in the Building Code of Australia.
Department means the Department of Urban Affairs and Planning.
Director-General means the Director-General of the Department.
environmental impact statement means an environmental impact statement referred to in section 78A or 112 of the Act.
existing use right means a right conferred by Division 10 of Part 4 of the Act.
exit has the same meaning as in the Building Code of Australia.
fire alarm communication link means that part of a fire alarm system which relays a fire alarm signal from the system to an alarm monitoring network.
Fire Commissioner means the Commissioner of New South Wales Fire Brigades.
fire compartment has the same meaning as in the Building Code of Australia.
fire link conversion means the conversion of a fire alarm communication link from connection with the fire alarm monitoring network operated by the New South Wales Fire Brigades to connection with an alarm monitoring network operated by a private service provider.
fire link conversion schedule means a conversion schedule referred to in clause 168A (2) (a).
fire protection and structural capacity of a building means:
(a)  the structural strength and load-bearing capacity of the building, and
(b)  the measures to protect persons using the building, and to facilitate their egress from the building, in the event of fire, and
(c)  the measures to restrict the spread of fire from the building to other buildings nearby.
fire safety schedule means a schedule referred to in clause 168 (1), 168A (2) (b) or 182 (2).
initial BASIX area means the area comprising the local government areas of Ashfield, Auburn, Bankstown, Baulkham Hills, Blacktown, Botany Bay, Burwood, Camden, Campbelltown, Canada Bay, Canterbury, Fairfield, Holroyd, Hornsby, Hunters Hill, Hurstville, Kogarah, Ku-ring-gai, Lane Cove, Leichhardt, Liverpool, Manly, Marrickville, Mosman, North Sydney, Parramatta, Penrith, Pittwater, Randwick, Rockdale, Ryde, Strathfield, Sutherland, Sydney, Warringah, Waverley, Willoughby and Woollahra.
local newspaper means a newspaper circulating throughout the relevant area at intervals of not more than 2 weeks.
nominated integrated development means development of the kind referred to in clause 5 (1) (b).
other advertised development means development of the kind referred to in clause 5 (2).
performance requirement has the same meaning as in the Building Code of Australia.
private service provider means a person or body that has entered into an agreement with the New South Wales Fire Brigades to monitor fire alarm systems.
qualified designer means a person registered as an architect in accordance with the Architects Act 2003.
Note.
 A building designer may be able to be registered as an architect in accordance with the Architects Act 2003 even though the person may have no formal qualifications in architecture.
relevant BASIX certificate, in relation to development, means:
(a)  in the case of development the subject of development consent:
(i)  a BASIX certificate that is applicable to the development when development consent is granted or (in the case of development consent modified under section 96 of the Act) modified, or
(ii)  if a replacement BASIX certificate accompanies any subsequent application for a construction certificate, the replacement BASIX certificate, or
(b)  in the case of development the subject of a complying development certificate, a BASIX certificate that is applicable to the development when the complying development certificate is granted or (in the case of a complying development certificate modified under section 87 of the Act) modified.
relevant submission period means:
(a)  in relation to submissions concerning a draft development control plan, the submission period specified for the plan in the notice referred to in clause 18 (1), or
(b)  in relation to submissions concerning a draft contributions plan, the submission period specified for the plan in the notice referred to in clause 28, or
(c)  in relation to submissions concerning designated development that has been notified as required by section 79 (1) of the Act, the submission period specified for the development in the notice referred to in clause 78 (1), or
(d)  in relation to submissions concerning State significant advertised development that has been notified as required by section 79A (1) of the Act, the submission period specified for the development in the notice referred to in clause 83 (1), or
(e)  in relation to submissions concerning nominated integrated development that has been notified as required by section 79A (1) of the Act, the submission period specified for the development in the notice referred to in clause 89 (1), or
(f)  in relation to submissions concerning development that has been notified or advertised as required by a development control plan referred to in section 79A (2) of the Act, the submission period specified for the development in the instrument by which the development has been so notified or advertised, or
(g)  in relation to submissions concerning an application for authorisation as an accreditation body, the submission period specified in the notice referred to in clause 193 (1), or
(h)  in relation to submissions concerning development of a kind referred to in two or more of paragraphs (c), (d), (e) and (f), the longer or longest of those periods.
required, when used as an adjective, has the same meaning as in the Building Code of Australia.
section 94 condition means a condition under section 94 of the Act requiring the dedication of land or the payment of a monetary contribution, or both.
section 94 contribution means the dedication of land, the payment of a monetary contribution or the provision of a material public benefit, as referred to in section 94 of the Act.
section 94A condition means a condition under section 94A of the Act requiring the payment of a levy.
section 94A levy means the payment of a levy, as referred to in section 94A of the Act.
State significant advertised development means development of the kind referred to in clause 5 (1) (a).
temporary building means a building that is stated to be a temporary building in the development consent or complying development certificate granted or issued in relation to its erection.
threatened species development means development of the kind referred to in clause 5 (1) (c).
4   What is designated development?
(cf clause 53C of EP&A Regulation 1994)
(1)  Development described in Part 1 of Schedule 3 is declared to be designated development for the purposes of the Act unless it is declared not to be designated development by a provision of Part 2 or 3 of that Schedule.
(2)  Part 4 of Schedule 3 defines certain words and expressions used in that Schedule.
(3)  Part 5 of Schedule 3 prescribes how certain distances are to be measured for the purposes of that Schedule.
(4)  Schedule 3, as in force when a development application is made, continues to apply to and in respect of the development application regardless of any subsequent substitution or amendment of that Schedule, and the application is unaffected by any such substitution or amendment.
(5)  References in subclause (4) to Schedule 3 include references to Schedule 3 to the Environmental Planning and Assessment Regulation 1994.
5   What is advertised development?
(cf clause 63 of EP&A Regulation 1994)
(1)  For the purposes of the definition of advertised development in section 4 (1) of the Act, the following types of development (not being designated development) are identified as advertised development:
(a)  State significant development referred to in section 76A (7) (b) or (d) of the Act (not being Class 1 aquaculture development), referred to in this Regulation as State significant advertised development,
(b)  integrated development (not being State significant advertised development, threatened species development or Class 1 aquaculture development) that requires an approval (within the meaning of section 90A of the Act) under:
(i)  a provision of the Heritage Act 1977 specified in section 91 (1) of the Act, or
(ii)  a provision of the Water Management Act 2000 specified in section 91 (1) of the Act, or
(iii)  a provision of the Protection of the Environment Operations Act 1997 specified in section 91 (1) of the Act,
referred to in this Regulation as nominated integrated development,
(c)  development referred to in section 78A (8) (b) of the Act (not being State significant advertised development), referred to in this Regulation as threatened species development,
(d)  development that, pursuant to State Environmental Planning Policy No 62—Sustainable Aquaculture, is Class 1 aquaculture development, referred to in this Regulation as Class 1 aquaculture development.
(2)  For the purposes of this Regulation, each of the following kinds of development, namely:
(a)  nominated integrated development,
(b)  threatened species development,
(c)  Class 1 aquaculture development,
(d)  any development that is identified as advertised development by an environmental planning instrument or a development control plan,
is referred to in this Regulation as other advertised development.
6   When is public notice given?
(cf clause 5 of EP&A Regulation 1994)
Public notice in a local newspaper is given for the purposes of this Regulation when the notice is first published in a local newspaper, even if the notice is required to be published more than once or in more than one newspaper.
7   Building Code of Australia
(cf clause 5A of EP&A Regulation 1994)
(1)  For the purposes of the definition of Building Code of Australia in section 4 (1) of the Act:
(a1)  the document referred to in that definition is:
(i)  the document published in October 1996 under the title Building Code of Australia, or
(ii)  if the document referred to in subparagraph (i) (or any replacement document under this subparagraph) is replaced by another document published under a title that includes the words “Building Code of Australia” together with a reference to the year 2004 or a later year, that other document, and
(a)  all amendments to that Code that are from time to time made by the Australian Building Codes Board are prescribed, and
(b)  all variations of that Code that are from time to time approved by the Australian Building Codes Board in relation to New South Wales are prescribed.
(2)  Any such amendment or variation comes into effect on the adoption date specified in that regard for New South Wales in the document by which the amendment or variation is published on behalf of the Australian Building Codes Board.
8   Notes
(cf clause 4 of EP&A Regulation 1994)
The explanatory note, table of contents and notes in this Regulation do not form part of this Regulation.
Part 2 Local environmental plans
Division 1 Notice to Director-General
9   Notice to Director-General
(1)  As soon as practicable after resolving to prepare a draft local environmental plan, a council is to give notice of that fact to the Director-General.
(2)  The notice must contain:
(a)  the terms of the resolution passed by the council, and
(b)  such information as the Director-General may require for the purpose of determining:
(i)  the effect of the proposed plan in relation to matters of State or regional significance,
(ii)  the adequacy of the consultation procedures to be adopted by the council in the preparation of the proposed plan, and
(iii)  the adequacy of any environmental study to be prepared by the council in relation to the proposed plan.
Division 2 Consultation and concurrence with other authorities
10   What documents must be given to other public authorities?
(cf clause 9 of EP&A Regulation 1994)
The following documents are to be given, free of charge, to each public authority that the council considers likely to be affected by, or to have an interest in, an environmental study prepared for the purposes of a draft local environmental plan:
(a)  a copy or summary of the study,
(b)  a copy or summary of the plan.
11   Public authorities must concur to proposed reservation of land
(cf clause 10 of EP&A Regulation 1994)
A local environmental plan or draft local environmental plan:
(a)  may not contain a provision reserving land for a purpose referred to in section 26 (1) (c) of the Act, and
(b)  may not contain a provision in respect of that reservation as required by section 27 of the Act,
unless the public authority responsible for the acquisition of the land has notified the council of its concurrence to the inclusion of such a provision in the plan.
Division 3 Public participation
12   What public notice is required for an environmental study and draft local environmental plan?
(cf clause 11 of EP&A Regulation 1994)
The public notice required to be given by the council under section 66 (1) of the Act must be published no later than the start of the public exhibition of the draft local environmental plan.
13   For how long must an environmental study and draft local environmental plan be exhibited?
(cf clause 12 of EP&A Regulation 1994)
For the purposes of section 66 (2) of the Act, the environmental study and draft local environmental plan must be publicly exhibited for at least 28 days.
14   How is notice of a public hearing to be given?
(cf clause 13 of EP&A Regulation 1994)
(1)  A council that decides that a public hearing is to be held under section 68 of the Act must give notice of that fact:
(a)  in a local newspaper, and
(b)  in a letter sent to each of the persons who requested a public hearing when making a submission about the draft local environmental plan.
(2)  The notice must contain details of the arrangements for the public hearing and must be sent or published, as the case requires, at least 21 days before the start of the public hearing.
Division 4 General
15   Recovery of cost of environmental study
(cf clause 14 of EP&A Regulation 1994)
For the purposes of section 57 (5) of the Act, the recovery from a person of any costs or expenses incurred by a council in the preparation of an environmental study is subject to:
(a)  the person agreeing to pay those costs and expenses, and
(b)  the terms of the agreement.
Part 3 Development control plans
Division 1 Preparation of development control plans by councils
16   In what form must a development control plan be prepared?
(cf clause 15 of EP&A Regulation 1994)
(1)  A development control plan must be in the form of a written statement, and may include supporting maps, plans, diagrams, illustrations and other materials.
(2)  A development control plan must describe the land to which it applies, and must identify any local environmental plan or deemed environmental planning instrument applying to that land.
17   For what matters may a development control plan provide?
(cf clause 16 of EP&A Regulation 1994)
A development control plan may provide for any matter for which a local environmental plan may provide.
17A   Where specific consultation is required
(1)  This clause applies to the following land:
Land to which Wollondilly Local Environmental Plan 1991 (Amendment No 37)—Camden Park applies (the Camden Park land).
(2)  The initial draft development control plan for land to which this clause applies must:
(a)  contain comprehensive provisions relating to the subdivision of, building on and the landscaping of, that land, and
(b)  include details about colours of, and materials to be used in, the exteriors of buildings, trees to be retained, plantings to be made, fencing and the position of building envelopes and access roads.
(3)  In the preparation of a draft development control plan for the Camden Park land, the council of the area within which the land is situated must consult with the Heritage Office, the Departments of Agriculture and Transport, the National Parks and Wildlife Service and Camden Council.
(4)  An objective of any draft development control plan for the Camden Park land is to assist in achieving the aims of Wollondilly Local Environmental Plan 1991 (Amendment No 37)—Camden Park.
Division 2 Public participation
18   Draft development control plan must be publicly exhibited
(cf clause 17 of EP&A Regulation 1994)
(1)  Following the preparation of a draft development control plan, the council:
(a)  must give public notice in a local newspaper of the places, dates and times for inspection of the draft plan,
(b)  must publicly exhibit at the places, on the dates and during the times set out in the notice:
(i)  a copy of the draft plan, and
(ii)  a copy of any relevant local environmental plan or deemed environmental planning instrument, and
(c)  must specify in the notice the period during which submissions about the draft plan may be made to the council (which must include the period during which the plan is being publicly exhibited).
(2)  A draft development control plan must be publicly exhibited for at least 28 days.
19   Copies of draft development control plans to be publicly available
(cf clause 18 of EP&A Regulation 1994)
Copies of the draft development control plan, and of any relevant local environmental plan or deemed environmental planning instrument, are to be made available to interested persons, either free of charge or on payment of reasonable copying charges.
20   Who may make submissions about a draft development control plan?
(cf clause 19 of EP&A Regulation 1994)
Any person may make written submissions to the council about the draft development control plan during the relevant submission period.
Division 3 Approval of development control plans
21   Approval of development control plans
(cf clause 20 of EP&A Regulation 1994)
(1)  After considering any submissions about the draft development control plan that have been duly made, the council:
(a)  may approve the plan in the form in which it was publicly exhibited, or
(b)  may approve the plan with such alterations as the council thinks fit, or
(c)  may decide not to proceed with the plan.
(2)  The council must give public notice of its decision in a local newspaper within 28 days after the decision is made.
(3)  Notice of a decision not to proceed with a development control plan must include the council’s reasons for the decision.
(4)  A development control plan comes into effect on the date that public notice of its approval is given in a local newspaper, or on a later date specified in the notice.
21A   Approval of development control plans relating to residential flat development
(1)  The council must not approve a draft development control plan (including an amending plan) containing provisions that apply to residential flat development unless the council:
(a)  has referred the provisions of the draft development control plan that relate to design quality to the design review panel (if any) constituted for the council’s area (or a region that includes the council’s area) under State Environmental Planning Policy No 65—Design Quality of Residential Flat Development, and
(b)  has taken into consideration any comments made by the design review panel concerning those provisions.
(2)  This clause extends to a plan the preparation of which commenced before the constitution of the relevant design review panel.
Division 4 Amendment and repeal of development control plans
22   How may a development control plan be amended or repealed?
(cf clause 21 of EP&A Regulation 1994)
(1)  A council may amend a development control plan by a subsequent development control plan.
(2)  A council may repeal a development control plan:
(a)  by a subsequent development control plan, or
(b)  by public notice in a local newspaper of its decision to repeal the plan.
23   Procedure for repealing a development control plan by public notice
(cf clause 22 of EP&A Regulation 1994)
(1)  Before repealing a development control plan by public notice in a local newspaper, the council must give public notice in a local newspaper:
(a)  of its intention to repeal the development control plan, and
(b)  of its reasons for doing so.
(2)  Publication of the notice of intention must take place at least 14 days before publication of the notice of repeal.
(3)  The repeal of a development control plan by public notice in a local newspaper takes effect on the date of publication of the notice.
Division 5 Development control plans made by the Director-General
24   Application of Part to development control plans made by the Director-General
(cf clause 23 of EP&A Regulation 1994)
This Part applies to a development control plan prepared under section 51A of the Act, subject to the following modifications:
(a)  a reference to a council is taken to be a reference to the Director-General,
(b)  a reference to a local environmental plan or deemed environmental planning instrument is taken to be a reference to a regional environmental plan.
Division 6 Public access
25   Copies of development control plans to be publicly available
(cf clause 24 of EP&A Regulation 1994)
Copies of the following documents are to be made available to interested persons, either free of charge or on payment of reasonable copying charges:
(a)  any development control plan in force in relation to the council’s area,
(b)  any document referred to in any such development control plan that is held by the council (such as a supporting map, plan, diagram, illustration or other material).
Note.
 This clause does not require a council to supply certified copies of any document. Certified copies are supplied under section 150 of the Act on payment of a prescribed fee. The fee for a certified copy is prescribed by clause 262.
Part 4 Development contributions
Division 1 Preliminary
25A   Planning authorities
Pursuant to paragraph (e) of the definition of planning authority in section 93C of the Act, all public authorities are declared to be planning authorities for the purposes of Division 6 of Part 4 of the Act.
Division 1A Planning agreements
25B   Form and subject-matter of planning agreements
(1)  A planning agreement must:
(a)  be in writing, and
(b)  be signed by the parties to the agreement.
Note.
 Section 93F (10) of the Act requires a planning agreement to conform with the Act, environmental planning instruments and development consents applying to the relevant land.
(2)  The Director-General may from time to time issue practice notes to assist parties in the preparation of planning agreements.
Note.
 Under section 93K of the Act the Minister may give planning authorities directions on requirements with respect to planning agreements.
25C   Making, amendment and revocation of agreements
(1)  A planning agreement is not entered into until it is signed by all the parties to the agreement.
Note.
 Section 93G of the Act provides that the agreement cannot be entered into until public notice of the proposed agreement has been given.
(2)  A planning agreement may specify that it does not take effect until:
(a)  if the agreement relates to a proposed change to an environmental planning instrument—the date the change is made, or
(b)  if the agreement relates to a development application or proposed development application—the date consent to the application is granted.
(3)  A planning agreement may be amended or revoked by further agreement in writing signed by the parties to the agreement (including by means of a subsequent planning agreement).
25D   Public notice of planning agreements
(1)  If a planning authority proposes to enter into a planning agreement, or an agreement to amend or revoke a planning agreement, in connection with a proposed change to a local environmental plan, or a development application, the planning authority is to ensure that public notice of the proposed agreement, amendment or revocation, is given as part of and contemporaneously with, and in the same manner as:
(a)  any public notice of the relevant draft local environmental plan that is required to be given by the planning authority under section 66 (1) of the Act, or
(b)  any notice of the development application that is required to be given by the planning authority by or under the Act,
as the case requires.
(2)  If the Minister proposes to enter into a planning agreement, or an agreement to amend or revoke a planning agreement, in connection with a proposed change to a regional environmental plan, the Director-General is to ensure that public notice of the proposed agreement, amendment or revocation, is given as part of and contemporaneously with, and in the same manner as, any public notice of the relevant draft regional environmental plan that is required to be given under section 47 of the Act.
(3)  The public notice of a proposed agreement, amendment or revocation must specify the arrangements relating to inspection by the public of copies of the proposed agreement, amendment or revocation.
Note.
 Section 93G of the Act requires a copy of the proposed agreement, amendment or revocation to be made available for inspection by the public for a period of not less than 28 days.
25E   Explanatory note
(1)  A planning authority proposing to enter into a planning agreement, or an agreement that revokes or amends a planning agreement, must prepare a written statement (referred to in this Division as an explanatory note):
(a)  that summarises the objectives, nature and effect of the proposed agreement, amendment or revocation, and
(b)  that contains an assessment of the merits of the proposed agreement, amendment or revocation, including the impact (positive or negative) on the public or any relevant section of the public.
(2)  Without limiting subclause (1), an explanatory note must:
(a)  identify how the agreement, amendment or revocation promotes the public interest and one or more of the objects of the Act, and
(b)  if the planning authority is a development corporation, identify how the agreement, amendment or revocation promotes one or more of its responsibilities under the Growth Centres (Development Corporations) Act 1974, and
(c)  if the planning authority is a public authority constituted by or under an Act, identify how the planning agreement, amendment or revocation promotes one or more of the objects (if any) of the Act by or under which it is constituted, and
(d)  if the planning authority is a council, identify how the agreement, amendment or revocation promotes one or more of the elements of the council’s charter under section 8 of the Local Government Act 1993, and
(e)  identify a planning purpose or purposes served by the agreement, amendment or revocation, and contain an assessment of whether the agreement, amendment or revocation provides for a reasonable means of achieving that purpose, and
(f)  identify whether the agreement, amendment or revocation conforms with the planning authority’s capital works program (if any).
(3)  The explanatory note is to be prepared jointly with the other parties proposing to enter into the planning agreement.
(4)  However, if 2 or more planning authorities propose to enter into a planning agreement, an explanatory note may include separate assessments prepared by the planning authorities in relation to matters affecting only one of the planning authorities, or affecting those planning authorities in a different manner.
(5)  A copy of the explanatory note must be exhibited with the copy of the proposed agreement, amendment or revocation when it is made available for inspection by the public in accordance with the Act.
(6)  If a council is not a party to a planning agreement that applies to the area of the council, a copy of the explanatory note must be provided to the council when a copy of the agreement is provided to the council under section 93G (4) of the Act.
(7)  A planning agreement may provide that the explanatory note is not to be used to assist in construing the agreement.
25F   Councils to facilitate public inspection of relevant planning agreements
(1)  A council must keep a planning agreement register.
(2)  The council must record in the register a short description of any planning agreement (including any amendment) that applies to the area of the council, including the date the agreement was entered into, the names of the parties and the land to which it applies.
(3)  A council must make the following available for public inspection (free of charge) during the ordinary office hours of the council:
(a)  the planning agreement register kept by the council,
(b)  copies of all planning agreements (including amendments) that apply to the area of the council,
(c)  copies of the explanatory notes relating to those agreements or amendments.
(4)  In this clause, planning agreement includes a planning agreement to which the council is not a party but which has been provided to the council under the Act.
25G   Director-General to facilitate public inspection of relevant planning agreements
(1)  The Director-General must keep a planning agreement register.
(2)  The Director-General must record in the register a short description of any planning agreement (including any amendment) entered into by the Minister, including the date the agreement was entered into, the names of the parties and the land to which it applies.
(3)  The Director-General must make the following available for public inspection (free of charge) during the ordinary office hours of the Department:
(a)  the planning agreement register kept by the Director-General,
(b)  copies of all planning agreements (including amendments) to which the Minister is a party,
(c)  copies of the explanatory notes relating to those agreements or amendments.
25H   Other planning authorities to facilitate public inspection of relevant planning agreements
A planning authority (not being a council or the Minister) must make the following available for public inspection (free of charge) during the ordinary office hours of the planning authority:
(a)  copies of all planning agreements (including amendments) to which it is a party,
(b)  copies of the explanatory notes relating to those agreements or amendments.
Division 1B Development consent contributions
25I   Indexation of monetary section 94 contribution—recoupment of costs
For the purposes of section 94 (3) of the Act, the cost of providing public amenities or public services is to be indexed quarterly or annually (as specified in the relevant contributions plan) in accordance with movements in the Consumer Price Index (All Groups Index) for Sydney issued by the Australian Statistician.
25J   Section 94A levy—determination of proposed cost of development
(1)  The proposed cost of carrying out development is to be determined by the consent authority, for the purpose of a section 94A levy, by adding up all the costs and expenses that have been or are to be incurred by the applicant in carrying out the development, including the following:
(a)  if the development involves the erection of a building, or the carrying out of engineering or construction work—the costs of or incidental to erecting the building, or carrying out the work, including the costs (if any) of and incidental to demolition, excavation and site preparation, decontamination or remediation,
(b)  if the development involves a change of use of land—the costs of or incidental to doing anything necessary to enable the use of the land to be changed,
(c)  if the development involves the subdivision of land—the costs of or incidental to preparing, executing and registering the plan of subdivision and any related covenants, easements or other rights.
(2)  For the purpose of determining the proposed cost of carrying out development, a consent authority may have regard to an estimate of the proposed cost of carrying out the development prepared by a person, or a person of a class, approved by the consent authority to provide such estimates.
(3)  The following costs and expenses are not to be included in any estimate or determination of the proposed cost of carrying out development:
(a)  the cost of the land on which the development is to be carried out,
(b)  the costs of any repairs to any building or works on the land that are to be retained in connection with the development,
(c)  the costs associated with marketing or financing the development (including interest on any loans),
(d)  the costs associated with legal work carried out or to be carried out in connection with the development,
(e)  project management costs associated with the development,
(f)  the cost of building insurance in respect of the development,
(g)  the costs of fittings and furnishings, including any refitting or refurbishing, associated with the development (except where the development involves an enlargement, expansion or intensification of a current use of land),
(h)  the costs of commercial stock inventory,
(i)  any taxes, levies or charges (other than GST) paid or payable in connection with the development by or under any law.
(4)  The proposed cost of carrying out development may be adjusted before payment, in accordance with a contributions plan, to reflect quarterly or annual variations to readily accessible index figures adopted by the plan (such as a Consumer Price Index) between the date the proposed cost was determined by the consent authority and the date the levy is required to be paid.
(5)  To avoid doubt, nothing in this clause affects the determination of the fee payable for a development application.
25K   Section 94A levy—maximum percentage
The maximum percentage of a section 94A levy is 1 percent of the proposed cost of carrying out the development.
Division 1C Preparation of contributions plans
26   In what form must a contributions plan be prepared?
(cf clause 25 of EP&A Regulation 1994)
(1)  A contributions plan must be prepared having regard to any relevant practice notes adopted for the time being by the Director-General, copies of which are available for inspection and purchase from the offices of the Department.
(2)  One or more contributions plans may be made for all or any part of the council’s area and in relation to one or more public amenities or public services.
(3)  The council must not approve a contributions plan that is inconsistent with any direction given to it under section 94E of the Act.
(4)  A draft contributions plan must be publicly exhibited for a period of at least 28 days.
27   What particulars must a contributions plan contain?
(cf clause 26 of EP&A Regulation 1994)
(1)  A contributions plan must include particulars of the following:
(a)  the purpose of the plan,
(b)  the land to which the plan applies,
(c)  the relationship between the expected types of development in the area and the demand for additional public amenities and services to meet that development,
(d)  the formulas to be used for determining the section 94 contributions required for different categories of public amenities and services,
(e)  the section 94 contribution rates for different types of development, as specified in a schedule to the plan,
(f)  if the plan authorises the imposition of a section 94A condition:
(i)  the percentage of the section 94A levy and, if the percentage differs for different types of development, the percentage of the levy for those different types of development, as specified in a schedule to the plan, and
(ii)  the manner (if any) in which the proposed cost of carrying out the development, after being determined by the consent authority, is to be adjusted to reflect quarterly or annual variations to readily accessible index figures adopted by the plan (such as a Consumer Price Index) between the date of that determination and the date the levy is required to be paid,
(g)  the council’s policy concerning the timing of the payment of monetary section 94 contributions, section 94A levies and the imposition of section 94 conditions or section 94A conditions that allow deferred or periodic payment,
(h)  a map showing the specific public amenities and services proposed to be provided by the council, supported by a works schedule that contains an estimate of their cost and staging (whether by reference to dates or thresholds),
(i)  if the plan authorises monetary section 94 contributions or section 94A levies paid for different purposes to be pooled and applied progressively for those purposes, the priorities for the expenditure of the contributions or levies, particularised by reference to the works schedule.
(2)  In determining the section 94 contribution rates or section 94A levy percentages for different types of development, the council must take into consideration the conditions that may be imposed under section 80A (6) (b) of the Act or section 97 (1) (b) of the Local Government Act 1993.
(3)  A contributions plan must not contain a provision that authorises monetary section 94 contributions or section 94A levies paid for different purposes to be pooled and applied progressively for those purposes unless the council is satisfied that the pooling and progressive application of the money paid will not unreasonably prejudice the carrying into effect, within a reasonable time, of the purposes for which the money was originally paid.
Division 2 Public participation
28   Draft contributions plan must be publicly exhibited
(cf clause 27 of EP&A Regulation 1994)
Following the preparation of a draft contributions plan, the council:
(a)  must give public notice in a local newspaper of the places, dates and times for inspection of the draft plan, and
(b)  must publicly exhibit at the places, on the dates and during the times set out in the notice:
(i)  a copy of the draft plan, and
(ii)  a copy of any supporting documents, and
(c)  must specify in the notice the period during which submissions about the draft plan may be made to the council (which must include the period during which the plan is being publicly exhibited).
29   Copies of draft contributions plans to be publicly available
(cf clause 28 of EP&A Regulation 1994)
Copies of the draft contributions plan, and of any supporting documents, are to be made available to interested persons, either free of charge or on payment of reasonable copying charges.
30   Who may make submissions about a draft contributions plan?
(cf clause 29 of EP&A Regulation 1994)
Any person may make written submissions to the council about the draft contributions plan during the relevant submission period.
Division 3 Approval of contributions plans
31   Approval of contributions plan by council
(cf clause 30 of EP&A Regulation 1994)
(1)  After considering any submissions about the draft contributions plan that have been duly made, the council:
(a)  may approve the plan in the form in which it was publicly exhibited, or
(b)  may approve the plan with such alterations as the council thinks fit, or
(c)  may decide not to proceed with the plan.
(2)  The council must give public notice of its decision in a local newspaper within 28 days after the decision is made.
(3)  Notice of a decision not to proceed with a contributions plan must include the council’s reasons for the decision.
(4)  A contributions plan comes into effect on the date that public notice of its approval is given in a local newspaper, or on a later date specified in the notice.
Division 4 Amendment and repeal of contributions plans
32   How may a contributions plan be amended or repealed?
(cf clause 31 of EP&A Regulation 1994)
(1)  A council may amend a contributions plan by a subsequent contributions plan.
(2)  A council may repeal a contributions plan:
(a)  by a subsequent contributions plan, or
(b)  by public notice in a local newspaper of its decision to repeal the plan.
(3)  A council may make the following kinds of amendments to a contributions plan without the need to prepare a new contributions plan:
(a)  minor typographical corrections,
(b)  changes to the rates of section 94 monetary contributions set out in the plan to reflect quarterly or annual variations to:
(i)  readily accessible index figures adopted by the plan (such as a Consumer Price Index), or
(ii)  index figures prepared by or on behalf of the council from time to time that are specifically adopted by the plan,
(c)  the omission of details concerning works that have been completed.
33   Procedure for repealing a contributions plan by public notice
(cf clause 32 of EP&A Regulation 1994)
(1)  Before repealing a contributions plan by public notice, the council must give public notice in a local newspaper:
(a)  of its intention to repeal the contributions plan, and
(b)  of its reasons for doing so.
(2)  Publication of the notice of intention must take place at least 14 days before publication of the notice of repeal.
(3)  The repeal of a contributions plan by public notice in a local newspaper takes effect on the date of publication of the notice.
33A   Review of contributions plan
(1)  A council is required to keep a contributions plan under review and, if a date by which a plan is to be reviewed is stated in it, is to review the plan by that date.
(2)  A council is also to consider any submissions about contributions plans received from public authorities or the public.
Division 5 Accounting
34   Councils must maintain contributions register
(cf clause 33 of EP&A Regulation 1994)
(1)  A council that imposes section 94 conditions or section 94A conditions on development consents must maintain a contributions register.
(2)  The council must record the following details in the register:
(a)  particulars sufficient to identify each development consent for which any such condition has been imposed,
(b)  the nature and extent of the section 94 contribution or section 94A levy required by any such condition for each public amenity or service,
(c)  the contributions plan under which any such condition was imposed,
(d)  the date or dates on which any section 94 contribution or section 94A levy required by any such condition was received, and its nature and extent.
35   Accounting for contributions and levies
(cf clause 34 of EP&A Regulation 1994)
(1)  A council must maintain accounting records that allow monetary section 94 contributions, section 94A levies, and any additional amounts earned from their investment, to be distinguished from all other money held by the council.
(2)  The accounting records for a contributions plan must indicate the following:
(a)  the various kinds of public amenities or services for which expenditure is authorised by the plan,
(b)  the monetary section 94 contributions or section 94A levies received under the plan, by reference to the various kinds of public amenities or services for which they have been received,
(ba)  in respect of section 94 contributions or section 94A levies paid for different purposes, the pooling or progressive application of the contributions or levies for those purposes, in accordance with any requirements of the plan or any ministerial direction under Division 6 of Part 4 of the Act,
(c)  the amounts spent in accordance with the plan, by reference to the various kinds of public amenities or services for which they have been spent.
(3)  A council must disclose the following information for each contributions plan in the notes to its annual financial report:
(a)  the opening and closing balances of money held by the council for the accounting period covered by the report,
(b)  the total amounts received by way of monetary section 94 contributions or section 94A levies during that period, by reference to the various kinds of public amenities or services for which they have been received,
(c)  the total amounts spent in accordance with the contributions plan during that period, by reference to the various kinds of public amenities or services for which they have been spent,
(d)  the outstanding obligations of the council to provide public amenities or services, by reference to the various kinds of public amenities or services for which monetary section 94 contributions or section 94A levies have been received during that or any previous accounting period.
36   Councils must prepare annual statements
(cf clause 35 of EP&A Regulation 1994)
(1)  As soon as practicable after the end of each financial year, a council must prepare an annual statement for the contributions plans in force in its area.
(2)  The annual statement must disclose, for each contributions plan, the information required by this Division to appear in the notes to its annual financial report.
Division 6 Public access
37   Councils must keep certain records available for public inspection
(cf clause 36 of EP&A Regulation 1994)
(1)  A council must make the following documents available for inspection:
(a)  each of its current contributions plans,
(b)  each of its annual statements,
(c)  its contributions register.
(2)  The documents must be available at the council’s principal office, free of charge, during the council’s ordinary office hours.
(3)  Subject to section 428 of the Local Government Act 1993, the annual statement may be included in, or form part of, the annual report prepared by the council under that section.
38   Copies of contributions plans to be publicly available
(cf clause 37 of EP&A Regulation 1994)
A council must make the following documents available for copying, either free of charge or on payment of reasonable copying charges:
(a)  each of its current contributions plans,
(b)  each document referred to in any such contributions plan that is held by the council.
Note.
 This clause does not require a council to supply certified copies of any document. Certified copies are supplied under section 150 of the Act on payment of a prescribed fee. The fee for a certified copy is prescribed by clause 262.
Part 5 Existing uses
39   Definitions
In this Part:
changed existing use means a use to which an existing use is changed in accordance with this Part.
relevant date means:
(a)  in relation to an existing use referred to in section 106 (a) of the Act—the date on which an environmental planning instrument having the effect of prohibiting the existing use first comes into force, or
(b)  in relation to an existing use referred to in section 106 (b) of the Act—the date when the building, work or land being used for the existing use was first erected, carried out or so used.
40   Object of Part
(cf clause 38 of EP&A Regulation 1994)
The object of this Part is to regulate existing uses under section 108 (1) of the Act.
Note.
 By section 108 (2) of the Act, the provisions of this Part are the incorporated provisions and so are taken to be incorporated in every environmental planning instrument in force under the Act.
41   Certain development allowed
(cf clause 39 of EP&A Regulation 1994)
(1)  An existing use may, subject to this Division:
(a)  be enlarged, expanded or intensified, or
(b)  be altered or extended, or
(c)  be rebuilt, or
(d)  be changed to another use, including a use that would otherwise be prohibited under the Act.
(2)  A use to which an existing use is changed is itself taken to be an existing use for the purposes of the Act and may, subject to this Division, be changed to another use.
42   Development consent required for enlargement, expansion and intensification of existing uses
(cf clause 40 of EP&A Regulation 1994)
(1)  Development consent is required for any enlargement, expansion or intensification of an existing use.
(2)  The enlargement, expansion or intensification:
(a)  must be for the existing use, or for a changed existing use, but for no other use, and
(b)  must be carried out only on the land on which the existing use was carried out immediately before the relevant date.
43   Development consent required for alteration or extension of buildings and works
(cf clause 41 of EP&A Regulation 1994)
(1)  Development consent is required for any alteration or extension of a building or work used for an existing use.
(2)  The alteration or extension:
(a)  must be for the existing use of the building or work, or for a changed existing use, but for no other use, and
(b)  must be erected or carried out only on the land on which the building or work was erected or carried out immediately before the relevant date.
44   Development consent required for rebuilding of buildings and works
(cf clause 42 of EP&A Regulation 1994)
(1)  Development consent is required for any rebuilding of a building or work used for an existing use.
(2)  The rebuilding:
(a)  must be for the existing use of the building or work, or for a changed existing use, but for no other use, and
(b)  must be carried out only on the land on which the building or work was erected or carried out immediately before the relevant date.
45   Development consent required for changes of existing uses
(cf clause 43 of EP&A Regulation 1994)
Development consent is required:
(a)  for any change of an existing use to another use, and
(b)  in the case of a building, work or land that is used for different existing uses, for any change in the proportions in which the various parts of the building, work or land are used for those purposes.
46   Uses may be changed at the same time as they are altered, extended, enlarged or rebuilt
(cf clause 44 of EP&A Regulation 1994)
Nothing in this Part prevents the granting of a development consent referred to in clause 42, 43 or 44 at the same time as the granting of a development consent referred to in clause 45.
Part 6 Procedures relating to development applications
Division 1 Development applications generally
47   Application of Part
(cf clause 45 of EP&A Regulation 1994)
This Part applies to all development applications.
Note.
 Because of the definition of development application in section 4 (1) of the Act, this Part does not apply to complying development or to applications for complying development certificates.
48   Consent authority to provide development application forms to intending applicants
(cf clause 45A of EP&A Regulation 1994)
The consent authority must provide any person intending to make a development application with:
(a)  the consent authority’s scale of fees for development applications generally, and
(b)  if the consent authority has determined the fee to accompany that particular application, advice of the amount determined, and
(c)  if the consent authority requires such an application to be in a particular form, blank copies of that form.
49   Who can make a development application?
(cf clause 46 of EP&A Regulation 1994)
(1)  A development application may be made:
(a)  by the owner of the land to which the development application relates, or
(b)  by any other person, with the consent in writing of the owner of that land.
(2)  Subclause (1) (b) does not require the consent in writing of the owner of the land for a development application made by a public authority if, before making the application, the public authority serves a copy of the application on the owner.
(3)  Despite subclause (1), a development application made by a lessee of Crown land may only be made with the consent in writing given by or on behalf of the Crown.
(4)  In this clause, public authority includes an irrigation corporation within the meaning of the Water Management Act 2000 that the Minister administering that Act has, by order in writing, declared to have the status of a public authority for the purposes of this clause in relation to development of a kind specified in the order.
50   How must a development application be made?
(cf clause 46A of EP&A Regulation 1994)
(1)  A development application:
(a)  must contain the information, and be accompanied by the documents, specified in Part 1 of Schedule 1, and
(b)  if the consent authority so requires, must be in the form approved by that authority, and
(c)  must be accompanied by the fee, not exceeding the fee prescribed by Part 15, determined by the consent authority, and
(d)  must be delivered by hand, sent by post or transmitted electronically to the principal office of the consent authority, but may not be sent by facsimile transmission.
(1A)  A development application that relates to a residential flat development, and that is made on or after 1 December 2003, must be accompanied by a design verification from a qualified designer, being a statement in which the qualified designer verifies:
(a)  that he or she designed, or directed the design, of the residential flat development, and
(b)  that the design quality principles set out in Part 2 of State Environmental Planning Policy No 65—Design Quality of Residential Flat Development are achieved for the residential flat development.
(2)  A development application that relates to development for which consent under the Wilderness Act 1987 is required must be accompanied by a copy of that consent.
(3)  Immediately after it receives a development application, the consent authority:
(a)  must register the application with a distinctive number, and
(b)  must endorse the application with its registered number and the date of its receipt, and
(c)  must give written notice to the applicant of its receipt of the application, of the registered number of the application and of the date on which the application was received.
(4)  In the case of a development application under section 78A (3) of the Act, the application must be accompanied by such matters as would be required under section 81 of the Local Government Act 1993 if approval were sought under that Act.
(5)  The consent authority must forward a copy of the development application to the relevant council if the council is not the consent authority.
(6)  If the development application is for designated development, the consent authority must forward to the Director-General (where the Minister or the Director-General is not the consent authority) and to the council (where the council is not the consent authority) a copy of the environmental impact statement, together with a copy of the relevant application.
Note.
 Additional requirements in relation to the making of a development application apply to applications for designated development, for integrated development and applications for development that affect threatened species.
51   Rejection of development applications
(cf clause 47 (1)–(3) of EP&A Regulation 1994)
(1)  A consent authority may reject a development application within 7 days after receiving it if:
(a)  the application is illegible or unclear as to the development consent sought, or
(b)  the application does not contain any information, or is not accompanied by any document, specified in Part 1 of Schedule 1.
(2)  A consent authority may reject a development application within 14 days after receiving it if:
(a1)  being an application for development requiring concurrence, the application fails to include the concurrence fees appropriate for each concurrence relevant to the development, or
(a)  being an application for integrated development, the application fails:
(i)  to identify all of the approvals referred to in section 91 of the Act that are required to be obtained before the development may be carried out, or
(ii)  to include the approval fees appropriate for each approval relevant to the development, or
(iii)  to include the additional information required by this Regulation in relation to the development, or
(b)  being an application referred to in section 78A (8) (b) of the Act, the application is not accompanied by a species impact statement referred to in that paragraph.
(3)  An application that is rejected under this clause is taken for the purposes of the Act never to have been made.
(4)  The consent authority must refund to the applicant the whole of any application fee paid in connection with an application that is rejected under this clause.
(5)  Immediately after the rejection of a development application for:
(a)  development for which the concurrence of a concurrence authority is required, or
(b)  integrated development,
the consent authority must notify each relevant concurrence authority or approval body of the rejection.
52   Withdrawal of development applications
(cf clause 47 (4)–(6) of EP&A Regulation 1994)
(1)  A development application may be withdrawn at any time prior to its determination by service on the consent authority of a notice to that effect signed by the applicant.
(2)  An application that is withdrawn is taken for the purposes of the Act (section 79 (6) of the Act and clause 90 (3) of this Regulation excepted) never to have been made.
(3)  The consent authority may (but is not required to) refund to the applicant the whole or any part of any application fee paid in connection with an application that has been withdrawn.
(4)  Immediately after the withdrawal of a development application for:
(a)  development for which the concurrence of a concurrence authority is required, or
(b)  integrated development,
the consent authority must notify each relevant concurrence authority or approval body of the withdrawal.
53   Consent authority may require additional copies of development application and supporting documents
(cf clause 47A of EP&A Regulation 1994)
A consent authority that is required:
(a)  to refer a development application to another person, or
(b)  to arrange for the public display of a development application,
may require the applicant to give it as many additional copies of the development application and supporting documents as are reasonably required for that purpose.
54   Consent authority may request additional information
(cf clause 48 of EP&A Regulation 1994)
(1)  A consent authority may request the applicant for development consent to provide it with such additional information about the proposed development as it considers necessary to its proper consideration of the application.
(2)  The request:
(a)  must be writing, and
(b)  may specify a reasonable period within which the information must be provided to the consent authority.
(3)  The information that a consent authority may request includes, but is not limited to, information relating to any relevant matter referred to in section 79C (1) (b)–(e) of the Act or in any relevant environmental planning instrument.
(4)  However, the information that a consent authority may request does not include, in relation to building or subdivision work, the information that is required to be attached to an application for a construction certificate.
Note.
 The aim of this provision is to ensure that the consent authority does not oblige the applicant to provide these construction details up-front where the applicant may prefer to test the waters first and delay applying for a construction certificate until, or if, development consent is granted.
(5)  Instead of providing the information requested, the applicant to whom a request is made under this clause may notify the consent authority in writing that the information will not be provided.
(6)  If the applicant for development consent has failed to provide any of the requested information by the end of:
(a)  any period specified as referred to in subclause (2) (b), or
(b)  such further period as the consent authority may allow,
the applicant is taken to have notified the consent authority that the information will not be provided, and the application may be dealt with accordingly.
55   What is the procedure for amending a development application?
(cf clause 48A of EP&A Regulation 1994)
(1)  A development application may be amended or varied by the applicant (but only with the agreement of the consent authority) at any time before the application is determined.
(2)  If an amendment or variation results in a change to the proposed development, the application to amend or vary the development application must have annexed to it written particulars sufficient to indicate the nature of the changed development.
(3)  If the development application is for:
(a)  development for which concurrence is required, as referred to in section 79B of the Act, or
(b)  integrated development,
the consent authority must immediately forward a copy of the amended or varied application to the concurrence authority or approval body.
55A   Amendments with respect to BASIX commitments
(1)  This clause applies to a development application that has been accompanied by a BASIX certificate pursuant to clause 2A of Schedule 1.
(2)  Without limiting clause 55, a development application may be amended or varied by the lodging of:
(a)  a new BASIX certificate to replace a BASIX certificate that accompanied the application, or to replace any subsequent BASIX certificate lodged under this clause, and
(b)  if any new accompanying document is required or any existing accompanying document requires amendment, a new or amended accompanying document.
(3)  If an amendment or variation of a development application, or of any accompanying document, results in the proposed development differing in any material respect from the description contained in a current BASIX certificate for the development, the application to amend or vary the development application must have annexed to it a replacement BASIX certificate whose description takes account of the amendment or variation.
(4)  In this clause, a reference to the accompanying document is a reference to any document required to accompany a development application pursuant to clause 2 of Schedule 1.
56   Extracts of development applications to be publicly available
(cf clause 48B of EP&A Regulation 1994)
(1)  This clause applies to all development other than designated or advertised development.
(2)  Extracts of a development application relating to the erection of a building:
(a)  sufficient to identify the applicant and the land to which the application relates, and
(b)  containing a plan of the building that indicates its height and external configuration, as erected, in relation to the site on which it is to be erected, if relevant for that particular development,
are to be made available to interested persons, either free of charge or on payment of reasonable copying charges.
Note.
 The erection of a building is defined in the Act to include the rebuilding of, the making of structural alterations to, or the enlargement or extension of a building or the placing or relocating of a building on land.
57   Copyright in documents forming part of or accompanying development applications—applicant’s indemnification
(cf clause 48C of EP&A Regulation 1994)
Upon a development application being made under section 78A of the Act, the applicant (not being entitled to copyright) is taken to have indemnified all persons using the development application and documents in accordance with the Act against any claim or action in respect of breach of copyright.
Division 2 Development applications for development requiring concurrence
58   Application of Division
(cf clause 49 of EP&A Regulation 1994)
(1)  This Division applies to all development applications that relate to development for which the concurrence of a concurrence authority is required.
(2)  This Division does not apply in circumstances in which a concurrence authority’s concurrence may be assumed in accordance with clause 64.
(3)  This Division ceases to apply to a development application if the development application is rejected or withdrawn under clause 51 or 52.
59   Seeking concurrence
(cf clause 49A of EP&A Regulation 1994)
(1)  After it receives a development application for development requiring concurrence, the consent authority:
(a)  must forward a copy of the application (together with all accompanying documentation) to the concurrence authority whose concurrence is required, and
(b)  must notify the concurrence authority in writing of the basis on which its concurrence is required and of the date of receipt of the development application, and
(c)  if known at that time, must notify the concurrence authority in writing of the dates of the relevant submission period or periods if the application is to be publicly notified under section 79 or 79A of the Act.
(2)  In the case of a development application that indicates on its face that such concurrence is required, the application must be forwarded to the relevant concurrence authority within 2 days after the application is lodged.
60   Concurrence authority may require additional information
(cf clause 50 of EP&A Regulation 1994)
(1)  A concurrence authority whose concurrence has been sought may request the consent authority to provide it with such additional information about the proposed development as it considers necessary to its proper consideration of the question as to whether concurrence should be granted or refused.
(2)  The request:
(a)  must be in writing, and
(b)  may specify a reasonable period within which the information must be provided to the consent authority.
(3)  Immediately after receiving a request for additional information from a concurrence authority, a consent authority must request the applicant, in writing, to provide the information sought within the period specified by the concurrence authority.
(4)  Immediately after receiving the requested information from the applicant, the consent authority must forward that information to the concurrence authority.
(5)  Instead of providing the information requested, the applicant to whom a request is made under this clause may notify the consent authority in writing that the information will not be provided.
(6)  If the applicant for development consent has failed to provide any of the requested information by the end of:
(a)  any period specified as referred to in subclause (2) (b), or
(b)  such further period as the concurrence authority may allow,
the applicant is taken to have notified the consent authority that the information will not be provided, and the application may be dealt with accordingly.
61   Forwarding of submissions to concurrence authorities
(cf clause 50A of EP&A Regulation 1994)
(1)  This clause applies to development that is required to be advertised or notified under section 79 or 79A of the Act.
(2)  Immediately after the expiration of the relevant submission period, the consent authority must forward to each concurrence authority a copy of all submissions received in response to the advertisement or notification.
62   Notification of decision
(cf clause 51 of EP&A Regulation 1994)
(1)  A concurrence authority that has received a development application from a consent authority must give written notice to the consent authority of its decision on the development application:
(a)  within 40 days after receipt of the copy of the application, or
(b)  in the case of development that is required to be advertised or notified under section 79 or 79A of the Act, within 21 days after it receives:
(i)  the last of the submissions made during the relevant submission period, or
(ii)  advice from the consent authority that no submissions were made.
Note.
 This period may be extended by operation of Division 11.
(2)  If the consent authority determines a development application by refusing to grant consent before the expiration of the relevant period under subclause (1):
(a)  the consent authority must notify the concurrence authority as soon as possible after the determination, and
(b)  this clause ceases to apply to the development application.
(3)  Nothing in this clause prevents a consent authority from having regard to a concurrence authority’s decision on a development application that has been notified to the consent authority after the expiration of the relevant period under subclause (1).
63   Reasons for granting or refusal of concurrence
(cf clause 51A of EP&A Regulation 1994)
(1)  If the concurrence authority:
(a)  grants concurrence subject to conditions, or
(b)  refuses concurrence,
the concurrence authority must give written notice to the consent authority of the reasons for the imposition of the conditions or the refusal.
(2)  If the concurrence is one that is required under section 79B (3) of the Act, a copy of the reasons must be available for public inspection, during ordinary office hours:
(a)  at the head office of the National Parks and Wildlife Service, or
(b)  if the matter concerns critical habitat of fish or marine vegetation, or threatened species, populations or ecological communities of fish or marine vegetation or their habitats, at the head office of NSW Fisheries.
64   Circumstances in which concurrence may be assumed
(cf clause 51B of EP&A Regulation 1994)
(1)  A concurrence authority may, by written notice given to the consent authority:
(a)  inform the consent authority that concurrence may be assumed, subject to such qualifications or conditions as are specified in the notice, and
(b)  amend or revoke an earlier notice under this clause.
(2)  A consent granted by a consent authority that has assumed concurrence in accordance with a notice under this clause is as valid and effective as if concurrence had been given.
Division 3 Development applications for integrated development
65   Application of Division
(cf clause 52 of EP&A Regulation 1994)
(1)  This Division applies to all development applications for integrated development.
(2)  This Division ceases to apply to a development application if the development application is rejected or withdrawn under clause 51 or 52.
66   Seeking general terms of approval
(cf clause 52A of EP&A Regulation 1994)
(1)  After it receives a development application for integrated development, the consent authority:
(a)  must forward a copy of the application (together with all accompanying documentation) to the approval body whose approval is required, and
(b)  must notify the approval body in writing of the basis on which its approval is required and of the date of receipt of the development application, and
(c)  if known at that time, must notify the approval body in writing of the dates of the relevant submission period if the application is to be publicly notified under section 79 or 79A of the Act.
(2)  In the case of a development application that indicates on its face that such an approval is required, the application must be forwarded to the relevant approval body within 2 days after the application is lodged.
67   Approval body may require additional information
(cf clause 53 of EP&A Regulation 1994)
(1)  An approval body the general terms of whose approval have been sought may request the consent authority to provide it with such additional information about the proposed development as it considers necessary to its proper consideration of the general terms of approval.
(2)  The request:
(a)  must be in writing, and
(b)  may specify a reasonable period within which the information must be provided to the consent authority.
(3)  Immediately after receiving a request for additional information from an approval body, a consent authority must request the applicant, in writing, to provide the information sought within the period specified by the approval body.
(4)  Immediately after receiving the requested information from the applicant, the consent authority must forward that information to the approval body.
(5)  Instead of providing the information requested, the applicant to whom a request is made under this clause may notify the consent authority in writing that the information will not be provided.
(6)  If the applicant for development consent has failed to provide any of the requested information by the end of:
(a)  any period specified as referred to in subclause (2) (b), or
(b)  such further period as the approval body may allow,
the applicant is taken to have notified the consent authority that the information will not be provided, and the application may be dealt with accordingly.
68   Consent authority to be notified of proposed consultations under National Parks and Wildlife Act 1974
(cf clause 53AA of EP&A Regulation 1994)
(1)  If:
(a)  development is integrated development because, or partly because, it requires consent under section 90 of the National Parks and Wildlife Act 1974, and
(b)  the Director-General of National Parks and Wildlife is of the opinion that consultation with an Aboriginal person or persons, an Aboriginal Land Council or another Aboriginal organisation concerning a relic or Aboriginal place is required before the Director-General can make a decision concerning the general terms of approval in relation to such a consent (including whether or not the Director-General will grant consent),
the Director-General must cause notice of that fact to be given to the consent authority.
69   Forwarding of submissions to approval bodies
(cf clause 53A of EP&A Regulation 1994)
(1)  This clause applies to development that is required to be advertised or notified under section 79 or 79A of the Act.
(2)  Immediately after the expiration of the relevant submission period, the consent authority must forward to each approval body a copy of all submissions received in response to the advertisement or notification.
70   Notification of general terms of approval
(cf clause 53B of EP&A Regulation 1994)
(1)  An approval body that has received a development application from a consent authority must give written notice to the consent authority of its decision concerning the general terms of approval in relation to the development application (including whether or not it will grant an approval):
(a)  within 40 days after receipt of the copy of the application, or
(b)  in the case of development that is required to be advertised or notified under section 79 or 79A of the Act, within 21 days after it receives:
(i)  the last of the submissions made during the relevant submission period, or
(ii)  advice from the consent authority that no submissions were made.
Note.
 This period may be extended by operation of Division 11.
(2)  If the consent authority determines a development application by refusing to grant consent before the expiration of the relevant period under subclause (1):
(a)  the consent authority must notify the approval body as soon as possible after the determination, and
(b)  this clause ceases to apply to the development application.
(3)  Nothing in this clause prevents a consent authority from having regard to an approval body’s general terms of approval that have been notified to the consent authority after the expiration of the relevant period under subclause (1).
Division 4 Environmental impact statements
71   What is the form for an environmental impact statement?
(cf clause 54 of EP&A Regulation 1994)
For the purposes of section 78A (8) of the Act, the prescribed form for an environmental impact statement to accompany a development application is a form that contains the following information:
(a)  the name, address and professional qualifications of the person by whom the statement is prepared,
(b)  the name and address of the person by whom the development application was made,
(c)  the address of the land in respect of which the development application was made,
(d)  a description of the development to which the statement relates,
(e)  an assessment by the person by whom the statement is prepared of the environmental impact of the development to which the statement relates, dealing with the matters referred to in clause 72,
(f)  a declaration by the person by whom the statement is prepared to the effect that:
(i)  the statement has been prepared in accordance with clauses 72 and 73, and
(ii)  the statement contains all available information that is relevant to the environmental assessment of the development to which the statement relates, and
(iii)  that the information contained in the statement is neither false nor misleading.
72   What must an environmental impact statement contain?
(cf clause 54A of EP&A Regulation 1994)
(1)  The contents of an environmental impact statement must include:
(a)  for development of a kind for which specific guidelines are in force under this clause, the matters referred to in those guidelines, or
(b)  for any other kind of development:
(i)  the matters referred to in the general guidelines in force under this clause, or
(ii)  if no such guidelines are in force, the matters referred to in Schedule 2.
(2)  For the purposes of this clause, the Director-General may establish guidelines for the preparation of environmental impact statements, in relation to development generally or in relation to any specific kind of development.
(3)  The Director-General may vary or revoke any guidelines in force under this clause.
(4)  An environmental impact statement prepared in accordance with this clause before the date on which any of the following events occur:
(a)  the amendment of Schedule 2,
(b)  the establishment of new guidelines under this clause,
(c)  the variation or revocation of existing guidelines under this clause,
is taken to have been prepared in accordance with this clause, for the purposes of any development application made within 3 months after that date, as if the relevant event had not occurred.
73   Requirements of Director-General and approval bodies concerning preparation of environmental impact statements
(cf clause 55 of EP&A Regulation 1994)
(1)  The applicant responsible for preparing an environmental impact statement must consult with the Director-General and, in completing the statement, must have regard to the Director-General’s requirements:
(a)  as to the form and content of the statement, and
(b)  as to making the statement available for public comment.
(2)  For the purposes of the consultation, the applicant must give the Director-General written particulars of:
(a)  the location, nature and scale of the development, and
(b)  in the case of a development application for integrated development, the approvals that are required.
(3)  In the case of proposed integrated development the Director-General must request, in writing, each relevant approval body to provide the Director-General with that approval body’s requirements in relation to the environmental impact statement for the purpose of its decision concerning the general terms of the approval in relation to the development (including whether or not it will grant an approval).
(4)  If an approval body does not provide the Director-General, in writing, with its requirements within 14 days after receipt of the Director-General’s request under subclause (3):
(a)  the Director-General must inform the applicant, and
(b)  the applicant:
(i)  must consult with the approval body and obtain its requirements in relation to the environmental impact statement for the purpose of its decision concerning the general terms of the approval in relation to the development (including whether or not it will grant an approval), and
(ii)  in completing the statement, must have regard to the approval body’s requirements.
(5)  Within 28 days after the applicant’s consultation with the Director-General is completed, or within such further time as is agreed between the Director-General and the applicant, written notice of the Director-General’s requirements must be given:
(a)  to the applicant, and
(b)  to the relevant consent authority (unless the Minister or the Director-General is the consent authority), and
(c)  to the relevant approval body (in the case of proposed integrated development for which the approval body has provided the Director-General with its requirements following the Director-General’s request under subclause (3)).
(6)  If the development application to which the environmental impact statement relates is not made within 2 years after the notice is given, the applicant must consult further with the Director-General in relation to the preparation of the statement.
(7)  The Director-General may waive the requirement for consultation under this clause in relation to any particular development or any particular class or description of development, other than integrated development.
74   Consent authority may require additional copies of environmental impact statement
(cf clause 55A of EP&A Regulation 1994)
The consent authority may require an applicant for development consent for designated development to give it as many additional copies of the environmental impact statement as are reasonably required for the purposes of the Act.
75   Consent authority may sell copies of environmental impact statement to the public
(cf clause 56 of EP&A Regulation 1994)
(1)  Copies of an environmental impact statement may be sold by a consent authority to any member of the public for not more than $25 per copy.
(2)  A consent authority:
(a)  must pay the proceeds of sale to the applicant responsible for the preparation of the statement, and
(b)  must return to the applicant any unsold copies of the statement.
76   Documents adopted or referred to by environmental impact statement
(cf clause 56A of EP&A Regulation 1994)
(1)  Any document adopted or referred to by an environmental impact statement is taken to form part of the statement.
(2)  Nothing in this Part requires the applicant responsible for the preparation of an environmental impact statement to supply any person with a document that is publicly available.
Division 5 Public participation—designated development
77   Notice of application for designated development to public authorities (other than concurrence authorities and approval bodies)
(cf clause 57 of EP&A Regulation 1994)
At the same time as giving public notice under section 79 (1) of the Act, the consent authority must give written notice of a development application for designated development to such public authorities (other than relevant concurrence authorities or approval bodies) as, in the opinion of the consent authority, may have an interest in the determination of that development application.
78   What information must a written notice of designated development contain?
(cf clause 58 of EP&A Regulation 1994)
(1)  A written notice of a development application under section 79 (1) (b) of the Act must contain the following information:
(a)  a description (including the address) of the land on which the development is proposed to be carried out,
(b)  the name of the applicant and of the consent authority,
(c)  a description of the proposed development,
(d)  a statement that the proposed development is designated development,
(e)  a statement that the development application and the documents accompanying the application, including the environmental impact statement, may be inspected:
(i)  at the consent authority’s principal office, and
(ii)  at the Department’s offices (if the Minister or Director-General is not the consent authority), and
(iii)  at the council’s principal office (if the council is not the consent authority),
for a period specified in the notice during the relevant authority’s ordinary office hours,
(f)  a statement that:
(i)  any person during the period specified under paragraph (e) may make written submissions to the consent authority concerning the development application, and
(ii)  if a submission is made by way of objection, the grounds of objection must be specified in the submission,
(g)  the dates of the period specified under paragraph (e),
(h)  if the proposed development is also integrated development:
(i)  a statement that the development is integrated development, and
(ii)  a statement of the approvals that are required and the relevant approval bodies for those approvals,
(i)  a statement that, unless the proposed development is development for which a Commission of Inquiry has been held, any person:
(i)  who makes a submission by way of objection, and
(ii)  who is dissatisfied with the determination of the consent authority to grant development consent,
may appeal to the Land and Environment Court,
(j)  a statement that, if a Commission of Inquiry is held, the Minister’s determination of the application is final and not subject to appeal.
(2)  The period referred to under subclause (1) (e) must include the period of 30 days commencing on the day after which notice of the development application is first published in a newspaper under section 79 (1) (d) of the Act.
79   How is the notice under section 79 (1) (c) of the Act exhibited on land for designated development?
(cf clause 59 of EP&A Regulation 1994)
(1)  The notice for a development application for designated development under section 79 (1) (c) of the Act:
(a)  must be exhibited on the land to which the development application relates, and
(b)  must be displayed on a signpost or board, and
(c)  must be clear and legible, and
(d)  must be headed in capital letters and bold type “DEVELOPMENT PROPOSAL”, and
(e)  must contain under that heading the following matters:
(i)  a statement that the development application has been lodged,
(ii)  the name of the applicant,
(iii)  a brief description of the development application,
(iv)  notice that the development application and the relevant environmental impact statement may be inspected at the places, on the dates and during the times specified in the notice, being the same places, dates and times specified in the written notice under section 79 (1) (b) of the Act, and
(f)  must, if practicable, be capable of being read from a public place.
80   How is the notice under section 79 (1) (d) published for designated development?
(cf clause 60 of EP&A Regulation 1994)
The notice for a development application for designated development under section 79 (1) (d) of the Act:
(a)  must be published on at least 2 separate occasions, and
(b)  must appear across 2 or 3 columns in the display section of the newspaper, and
(c)  must be headed in capital letters and bold type “DEVELOPMENT PROPOSAL”, and
(d)  must contain the same matters as are required for a notice under section 79 (1) (b) of the Act.
81   Forwarding of submissions to Director-General
(cf clause 62 of EP&A Regulation 1994)
For the purposes of section 80 (9) (b) of the Act, the consent authority must, immediately after the relevant submission period, forward to the Director-General (if the Minister or the Director-General is not the consent authority) a copy of all submissions (including submissions by way of objection) received in response to the public exhibition of a development application for designated development.
Note.
 This requirement will not apply if the Director-General has waived the requirement under section 80 (10) (b) of the Act.
Division 6 Public participation—State significant advertised development
82   Application of section 79 of the Act relating to designated development
(cf clause 64 of EP&A Regulation 1994)
(1)  For the purposes of section 79A (1) of the Act, section 79 of the Act applies to a development application for State significant advertised development in the same way as it applies to a development application for designated development, and this Division applies accordingly.
(2)  This Division does not apply to development on land to which clause 26F of Newcastle Local Environmental Plan 1987 applies.
83   What must a written notice under section 79 (1) (b) of the Act contain?
(cf clause 64 of EP&A Regulation 1994)
(1)  For the purposes of section 79 (1) (b) of the Act, a written notice of a development application for State significant advertised development must contain the following information:
(a)  a description (including the address) of the land on which the development is proposed to be carried out,
(b)  the name of the applicant and of the consent authority,
(c)  a description of the proposed development,
(d)  a statement that the proposed development is not designated development,
(e)  a statement that the development application and the documents accompanying the application may be inspected:
(i)  at the Department’s principal office, and
(ii)  at the council’s principal office,
for a period specified in the notice during the relevant authority’s ordinary office hours,
(f)  a statement that:
(i)  any person during the period specified under paragraph (e) may make written submissions to the Director-General concerning the development application, and
(ii)  if a submission is made by way of objection, the grounds of objection must be specified in the submission,
(g)  the dates of the period specified under paragraph (e),
(h)  a statement that:
(i)  the Minister will determine the application, and
(ii)  if the proposed development is subject to a direction under section 89 of the Act, the council may request that a Commission of Inquiry be held into the development, and
(iii)  if a Commission of Inquiry is held, the Minister’s determination of the application is final and not subject to appeal,
(i)  if the development is also integrated development:
(i)  a statement that the development is integrated development, and
(ii)  a statement of the approvals that are required and the relevant approval bodies for those approvals.
(2)  The period referred to under subclause (1) (e) must include the period of 30 days commencing on the day after which notice of the development application is first published in a newspaper under section 79 (1) (d) of the Act.
84   How is the notice under section 79 (1) (c) of the Act to be exhibited on land?
(cf clause 64 of EP&A Regulation 1994)
The notice for a development application for State significant advertised development under section 79 (1) (c) of the Act:
(a)  must be exhibited on the land to which the development application relates, and
(b)  must be displayed on a signpost or board, and
(c)  must be clear and legible, and
(d)  must be headed in capital letters and bold type “DEVELOPMENT PROPOSAL”, and
(e)  must contain under that heading the following matters:
(i)  a statement that the development application has been lodged,
(ii)  the name of the applicant,
(iii)  a brief description of the development application,
(iv)  notice that the development application may be inspected at the places, on the dates and during the times specified in the notice, being the same places, dates and times specified in the written notice under section 79 (1) (b) of the Act, and
(f)  must, if practicable, be capable of being read from a public place.
85   How is the notice published under section 79 (1) (d) of the Act published?
(cf clause 64 of EP&A Regulation 1994)
The notice for a development application for State significant advertised development under section 79 (1) (d) of the Act:
(a)  must be published in the public notices section of the newspaper, and
(b)  must be headed in capital letters and bold type “DEVELOPMENT PROPOSAL”, and
(c)  must contain the same matters as are required for a notice under section 79 (1) (b) of the Act.
Division 7 Public participation—other advertised development
86   Application of Division
(cf clause 65 of EP&A Regulation 1994)
(1)  This Division applies to other advertised development.
(2)  This Division does not apply to development on land to which clause 26F of Newcastle Local Environmental Plan 1987 applies.
87   How must a development application be publicly notified?
(cf clause 65 of EP&A Regulation 1994)
As soon as practicable after a development application for other advertised development is lodged with the consent authority, the consent authority must:
(a)  give written notice of the application (referred to in this Division as a written notice), and
(b)  cause notice of the application to be published in a local newspaper (referred to in this Division as a published notice).
88   Who must written notice be given to?
(cf clause 65 of EP&A Regulation 1994)
(1)  Written notice of the development application must be given:
(a)  to such persons as appear to the consent authority to own or occupy the land adjoining the land to which the application relates, and
(b)  to such public authorities (other than relevant concurrence authorities or approval bodies) as, in the opinion of the consent authority, may have an interest in the determination of the application.
(2)  For the purposes of this clause:
(a)  if land is a lot within the meaning of the Strata Schemes (Freehold Development) Act 1973, a written notice to the owners corporation is taken to be a written notice to the owner or occupier of each lot within the strata scheme, and
(b)  if land is a lot within the meaning of the Strata Schemes (Leasehold Development) Act 1986, a written notice to the lessor under the leasehold strata scheme concerned and to the owners corporation is taken to be a written notice to the owner or occupier of each lot within the strata scheme, and
(c)  if land is owned or occupied by more than one person, a written notice to one owner or one occupier is taken to be a written notice to all the owners and occupiers of that land.
89   What information must be contained in a written notice and a published notice?
(cf clause 65 of EP&A Regulation 1994)
(1)  A written notice and a published notice of the development application must contain the following information:
(a)  a description of the land (including the address) on which the development is proposed to be carried out,
(b)  the name of the applicant and the name of the consent authority,
(c)  a description of the proposed development,
(d)  a statement that the application and the documents accompanying that application may be inspected at the consent authority’s principal office for a period specified in the notice during the consent authority’s ordinary office hours,
(e)  a statement that any person during the period specified under paragraph (d) may make a written submission in relation to the development application to the consent authority,
(f)  the dates of the period specified under paragraph (d).
(2)  The written notice and the published notice:
(a)  in the case of development that is integrated development:
(i)  must contain a statement that the development is integrated development, and
(ii)  must state the approvals that are required and the relevant approval bodies for those approvals, and
(b)  in the case of development that is threatened species development, must contain a statement that the development is threatened species development.
(3)  The period referred to in subclause (1) (d) must include:
(a)  in the case of nominated integrated development or threatened species development, the period of 30 days, and
(b)  in any other case, the period of 14 days,
commencing on the day after the day on which the published notice is first published in a newspaper.
90   Circumstances in which notice requirements may be dispensed with
(cf clause 65 of EP&A Regulation 1994)
(1)  This clause applies to a development application that before being determined by the consent authority, has been amended or substituted, or that has been withdrawn and later replaced, where:
(a)  the consent authority has complied with this Division in relation to the original application, and
(b)  the consent authority is of the opinion that the amended, substituted or later application differs only in minor respects from the original application,
referred to in this clause as a replacement application.
(2)  The consent authority may decide to dispense with further compliance with this Division in relation to a replacement application and, in that event, compliance with this Division in relation to the original application is taken to be compliance in relation to the replacement application.
(3)  The consent authority must give written notice to the applicant of its decision under this clause at or before the time notice of the determination of the replacement application is given under section 81 of the Act.
91   Public notification of development application and accompanying information
(cf clause 65 of EP&A Regulation 1994)
(1)  The consent authority must ensure that a development application is publicly notified in accordance with the relevant requirements and that any accompanying information is available for inspection during the relevant submission period at the place or places specified in the public notice.
(2)  During the relevant submission period:
(a)  any person may inspect the development application and any accompanying information and make extracts from or copies of them, and
(b)  any person may make written submissions to the consent authority with respect to the development application.
(3)  A submission by way of objection must set out the grounds of the objection.
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 referred to in subclause (1):
(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.
(3)  A notice of voluntary surrender of a development consent, as referred to in section 104A of the Act, is to be given to the consent authority and is to 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 relates,
(c)  a description of the development consent to be surrendered,
(d)  if the person giving the notice 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 surrender of the consent,
(e)  if development has commenced to be carried out in accordance with the consent—a statement setting out the circumstances that indicate:
(i)  that so much of the development as has been carried out has been carried out in compliance with any condition of the consent, or any agreement with the consent authority relating to the consent, that is relevant to that part of the development, and
(ii)  that the surrender will not have an adverse impact on any third party or the locality.
(4)  A duly signed and delivered notice of surrender of a development consent referred to in subclause (3):
(a)  takes effect when the consent authority notifies the person that:
(i)  it is satisfied that so much of the development as has been carried out has been carried out in compliance with any condition of the consent, or any agreement with the consent authority relating to the consent, that is relevant to that part of the development, and
(ii)  that the surrender will not have an adverse impact on any third party or the locality, and
(b)  operates, according to its terms, to surrender the consent to which it relates.
97A   Fulfilment of BASIX commitments
(1)  This clause applies:
(a)  on and from 1 July 2004, to all land within the initial BASIX area, and
(b)  on and from 1 July 2005, to all land within New South Wales.
(2)  This clause applies to all development:
(a)  that involves the erection (but not the alteration, enlargement, extension or relocation) of a BASIX affected building, or
(b)  that involves a change of building use by which a building becomes a BASIX affected building.
(3)  For the purposes of section 80A (11) of the Act, fulfilment of the commitments listed in each relevant BASIX certificate for development to which this clause applies is a prescribed condition of any development consent for the development.
Division 8A Prescribed conditions of development consent
98   Compliance with Building Code of Australia and insurance requirements under the 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 before any building work authorised to be carried out by the consent commences.
(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.
98A   Erection of signs
(1)  For the purposes of section 80A (11) of the Act, the requirements of subclauses (2) and (3) are prescribed as conditions of a development consent for development that involves any building work, subdivision work or demolition work.
(2)  A sign must be erected in a prominent position on any site on which building work, subdivision work or demolition work is being carried out:
(a)  showing the name, address and telephone number of the principal certifying authority for the work, and
(b)  showing the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working hours, and
(c)  stating that unauthorised entry to the work site is prohibited.
(3)  Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out, but must be removed when the work has been completed.
(4)  This clause does not apply in relation to building work, subdivision work or demolition work that is carried out inside an existing building that does not affect the external walls of the building.
(5)  This clause does not apply in relation to Crown building work that is certified, in accordance with section 116G of the Act, to comply with the technical provisions of the State’s building laws.
(6)  This clause applies to a development consent granted before 1 July 2004 only if the building work, subdivision work or demolition work involved had not been commenced by that date.
Note.
 Principal certifying authorities and principal contractors must also ensure that signs required by this clause are erected and maintained (see clause 227A which currently imposes a maximum penalty of $1,100).
98B   Notification of Home Building Act 1989 requirements
(1)  For the purposes of section 80A (11) of the Act, the requirements of this clause are prescribed as conditions of a development consent for development that involves any residential building work within the meaning of the Home Building Act 1989.
(2)  Residential building work within the meaning of the Home Building Act 1989 must not be carried out unless the principal certifying authority for the development to which the work relates (not being the council) has given the council written notice of the following information:
(a)  in the case of work for which a principal contractor is required to be appointed:
(i)  the name and licence number of the principal contractor, and
(ii)  the name of the insurer by which the work is insured under Part 6 of that Act,
(b)  in the case of work to be done by an owner-builder:
(i)  the name of the owner-builder, and
(ii)  if the owner-builder is required to hold an owner-builder permit under that Act, the number of the owner-builder permit.
(3)  If arrangements for doing the residential building work are changed while the work is in progress so that the information notified under subclause (2) becomes out of date, further work must not be carried out unless the principal certifying authority for the development to which the work relates (not being the council) has given the council written notice of the updated information.
(4)  This clause does not apply in relation to Crown building work that is certified, in accordance with section 116G of the Act, to comply with the technical provisions of the State’s building laws.
Division 9 Public inquiries
99   Public inquiries
(1)  This clause applies to any development application that relates to development with respect to which a public inquiry is directed to be held under Division 2 of Part 6 of the Act.
(2)  The consent authority for the development concerned must cause to be given to each concurrence authority and approval body for that development:
(a)  as soon as practicable after the direction is given, notice of the fact that a public inquiry is to be held, and
(b)  as soon as practicable after the findings and recommendations of the inquiry have been made public, copies of those findings and recommendations and (in the case of development other than designated development) any comments made by the Minister on them.
(3)  At any time within 14 days after receiving a copy of the findings and recommendations arising from the public inquiry:
(a)  a concurrence authority may vary any conditions that it may previously have imposed in relation to its concurrence to the development, and
(b)  an approval body may vary any general terms of approval that it may previously have given in relation to the development.
Division 10 Post-determination notifications
100   Notice of determination—what is the form of the notice?
(cf clause 68A of EP&A Regulation 1994)
(1)  For the purposes of section 81 (1) of the Act, a notice of the determination of a development application must contain the following information:
(a)  whether the application has been granted or refused,
(b)  if the application has been granted, the terms of any conditions (including conditions prescribed under section 80A (11) of the Act) on which it has been granted,
(c)  if the application has been refused, or granted subject to conditions (other than conditions prescribed under section 80A (11) of the Act), the consent authority’s reasons for the refusal or for the imposition of those conditions,
(d)  the date on which the determination was made,
(e)  the date from which any development consent that is granted operates,
(f)  the date on which any development consent that is granted lapses,
(g)  if the development involves a building but does not require a construction certificate for the development to be carried out, the class of the building under the Building Code of Australia,
(h)  whether a public inquiry into the application has been held under section 119 of the Act,
(i)  which approval bodies have given general terms of approval in relation to the development, as referred to in section 93 of the Act,
(j)  whether the Act gives a right of appeal against the determination to the applicant,
(k)  whether the Act gives a right of appeal against the determination to an objector.
(2)  The notice of determination must clearly identify the relevant development application by reference to its registered number.
(3)  A notice of determination of a grant of development consent must include a copy of any relevant plans endorsed by the consent authority.
(4)  In the case of a development consent granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, or a person specified by the consent authority, as to any matter specified in the condition:
(a)  the date from which the consent operates must not be endorsed on the notice of determination, and
(b)  if the applicant satisfies the consent authority, or person, as to the matter, the consent authority must give notice to the applicant of the date from which the consent operates.
(5)    (Repealed)
(6)  If the determination is one for which concurrence was required under section 79B (3) of the Act, a copy of the notice of determination:
(a)  except as provided by paragraph (b):
(i)  must be given to the Director-General of National Parks and Wildlife, and
(ii)  must be available for public inspection, during ordinary office hours, at the head office of the National Parks and Wildlife Service, or
(b)  if the matter concerns critical habitat of fish or marine vegetation, or threatened species, populations or ecological communities of fish or marine vegetation or their habitats:
(i)  must be given to the Director of NSW Fisheries, and
(ii)  must be available for public inspection, during ordinary office hours, at the head office of NSW Fisheries.
101   Additional particulars with respect to section 94 and 94A conditions
(cf clause 69A of EP&A Regulation 1994)
(1)  The notice to an applicant concerning a development consent the subject of a section 94 condition must include the following particulars in addition to any other particulars it is required to contain:
(a)  the specific public amenity or service in respect of which the condition is imposed,
(b)  the contributions plan under which the condition is imposed,
(c)  the address of the places where a copy of the contributions plan may be inspected.
(2)  The notice to an applicant concerning a development consent the subject of a section 94A condition must include the following particulars in addition to any other particulars it is required to contain:
(a)  the contributions plan under which the condition is imposed,
(b)  the address of the places where a copy of the contributions plan may be inspected.
102   How soon must a notice of determination be sent?
(cf clause 69 of EP&A Regulation 1994)
(1)  A notice under section 81 (1) of the Act must be sent to each person to whom it is required by that subsection to be sent within 14 days after the date of the determination of the applicant’s development application.
(2)  For the purposes of section 81 (1) (c) of the Act, any person who made a submission under the Act in relation to a development application (whether or not involving designated development) is required to be notified of the consent authority’s determination of the application.
(3)  Failure to send the notice within the 14-day period does not affect the validity of the notice or the development consent (if any) to which it relates.
103   Notice under section 81A of the Act of appointment of principal certifying authority
(cf clause 70 of EP&A Regulation 1994)
A notice given under or for the purposes of section 81A (2) (b1) (i) or (4) (b1) (i) of the Act must contain the following information:
(a)    (Repealed)
(b)  a description of the work to be carried out,
(c)  the address of the land on which the work is to be carried out,
(d)  the registered number and date of issue of the relevant development consent,
(e)  the name and address of the principal certifying authority, and of the person by whom the principal certifying authority was appointed,
(f)  if the principal certifying authority is an accredited certifier:
(i)  his or her accreditation number, and
(ii)  the name of the accreditation body by which he or she is accredited, and
(iii)  a statement signed by the accredited certifier to the effect that he or she consents to being appointed as principal certifying authority, and
(iv)  a telephone number on which he or she may be contacted for business purposes,
and, if the consent authority so requires, must be in the form approved by that authority.
103A   Notice under section 81A of the Act of critical stage inspections
A notice given under section 81A (2) (b1) (ii) of the Act must contain the following information:
(a)  the name and accreditation number of the principal certifying authority by whom the notice is given,
(b)  a telephone number on which the principal certifying authority can be contacted for business purposes,
(c)  the registered numbers of the development consent and of the construction certificate,
(d)  a description of the work to be carried out,
(e)  the address of the land at which the work is to be carried out,
(f)  a list of the critical stage inspections and other inspections required to be carried out in respect of the work.
104   Notice under section 81A of the Act of intention to commence subdivision work or erection of building
(cf clause 70 of EP&A Regulation 1994)
A notice given under or for the purposes of section 81A (2) (c) or (4) (c) of the Act must contain the following information:
(a)  the name and address of the person by whom the notice is being given,
(b)  a description of the work to be carried out, and
(c)  the address of the land on which the work is to be carried out, and
(d)  the registered number and date of issue of the relevant development consent,
(e)  the registered number and date of issue of the relevant construction certificate,
(f)  a statement signed by or on behalf of the principal certifying authority to the effect that all conditions of the consent that are required to be satisfied prior to the work commencing have been satisfied,
(g)  the date on which the work is intended to commence,
and, if the consent authority so requires, must be in the form approved by that authority.
105   Notice under section 91A (6) or section 92 (7) of the Act to approval bodies of determination of development application for integrated development
(cf clause 70A of EP&A Regulation 1994)
(1)  A notice under section 91A (6) or section 92 (7) of the Act to an approval body must be sent to the approval body within 14 days after the date of the determination of the relevant development application.
(2)  Failure to send the notice within the 14-day period does not affect the validity of the notice or the development consent (if any) to which it relates.
Division 11 Time within which development application procedures to be completed
106   Definitions
In this Division, assessment period means:
(a)  the period of 21 or 40 days, as the case may be, prescribed by clause 62 (1) as the period within which a concurrence authority must notify its decision as to a development application relating to development that requires its concurrence, but only if that period has commenced to run, or
(b)  the period of 21 or 40 days, as the case may be, prescribed by clause 70 (1) as the period within which an approval body must notify its decision as to a development application relating to integrated development, but only if that period has commenced to run,
(c)  the period of 25 days referred to in clauses 109 (2), 110 (2) and 111 (2),
(d)  the period of 40 or 60 days, as the case may be, prescribed by clause 113 (1) as the period beyond which a development application is taken to have been refused.
107   First 2 days after development application is lodged
Neither the day on which a development application is lodged with the consent authority nor the following day are to be taken into consideration in calculating the number of days in any of the assessment periods.
108   Days prior to referral of application to other bodies to be disregarded
(1)  This clause applies to a development application:
(a)  that is required to be referred to a concurrence authority, other than a concurrence authority to which, under clause 59 (2), the application is required to be to be forwarded within 2 days after it is lodged or
(b)  that is required to be referred to an approval body, other than an approval body to which, under clause 66 (2), the application is required to be to be forwarded within 2 days after it is lodged.
(2)  Any day that occurs between the date on which a development application is lodged with a consent authority and:
(a)  the date on which the consent authority forwards it to a concurrence authority or approval body, or
(b)  the date occurring at the end of the period of 14 days after the application was lodged with the consent authority,
whichever is the earlier, is not to be taken into consideration in calculating the number of days in any of the assessment periods.
109   Days occurring while consent authority’s request for additional information remains unanswered
(1)  Any day that occurs between the date of a consent authority’s request for additional information under clause 54 and:
(a)  the date on which the information is provided to the consent authority, or
(b)  the date on which the applicant notifies the consent authority in writing that the information will not be provided,
whichever is the earlier, is not to be taken into consideration in calculating the number of days in any of the assessment periods.
(2)  Subclause (1) applies only if the relevant request is made within 25 days after the date on which the development application was lodged with the consent authority.
Note.
 The 25-day period may be extended by operation of clauses 107 and 108.
110   Days occurring while concurrence authority’s or approval body’s request for additional information remains unanswered
(1)  Any day that occurs between the date on which a consent authority receives a concurrence authority’s or approval body’s request for additional information under clause 60 or 67 and:
(a)  the date occurring 2 days after the date on which the consent authority refers to the concurrence authority or approval body the additional information provided by the applicant, or
(b)  the date occurring 2 days after the date on which the consent authority notifies the concurrence authority or approval body that the applicant has notified the consent authority that the additional information will not be provided,
whichever is the earlier, is not to be taken into consideration in calculating the number of days in any of the assessment periods.
(2)  Subclause (1) applies only if the relevant request is made within 25 days after the date on which the development application is received by the concurrence authority or approval body concerned.
Note.
 The 25-day period may be extended by operation of clauses 107 and 108.
111   Days occurring during consultation under National Parks and Wildlife Act 1974
(1)  If:
(a)  development is integrated development because, or partly because, it requires consent under section 90 of the National Parks and Wildlife Act 1974, and
(b)  the Director-General of National Parks and Wildlife is of the opinion that consultation with an Aboriginal person or persons, an Aboriginal Land Council or another Aboriginal organisation concerning a relic or Aboriginal place is required before the Director-General can make a decision concerning the general terms of approval in relation to such a consent (including whether or not the Director-General will grant consent),
any day that occurs during the consultation (being a period that does not extend more than 46 days from the date on which the development application was lodged with the consent authority) is not to be taken into consideration for the purpose of calculating the number of days in any of the assessment periods.
(2)  Subclause (1) applies only if the consultation commences within 25 days after the date on which the development application is forwarded to the Director-General of National Parks and Wildlife.
Note.
 The 25-day period may be extended by operation of clauses 107 and 108.
112   Consent authority to notify applicant that time has ceased to run
(1)  On the occurrence of each of the following events, namely:
(a)  a request by a consent authority for additional information under clause 54,
(b)  the receipt by a consent authority of a concurrence authority’s or approval body’s request for additional information under clause 60 or 67,
(c)  the receipt by a consent authority of a notice from the Director-General of National Parks and Wildlife under clause 68,
the consent authority must notify the applicant of the effect that this Division has on the various periods of time to which this Division relates as a consequence of those events having occurred.
(2)  If several events require notification under this clause, a single notification referring to each of those events is sufficient.
Note.
 The object of this clause is to ensure that the applicant is kept informed as to when the various deadlines imposed by this Regulation occur in relation to the processing of his or her development application and, in particular, as to when any right of appeal may arise as a consequence of a deemed refusal of the application.
113   When is an application taken to be refused?
(cf clause 70B of EP&A Regulation 1994)
(1)  For the purposes of section 82 (1) of the Act, a development application is taken to be refused if a consent authority has not determined the application within:
(a)  40 days, except in the case of development referred to in paragraph (b), or
(b)  60 days, in the case of:
(i)  designated development, or
(ii)  integrated development (other than integrated development that, pursuant to State Environmental Planning Policy No 62—Sustainable Aquaculture, is Class 1 aquaculture development), or
(iii)  development for which the concurrence of a concurrence authority is required.
(2)  The 40-day and 60-day periods are measured from:
(a)  the date the development application is lodged with the consent authority, or
(b)  the date the Minister complies with section 119 (8) of the Act, if a public inquiry has been held under section 119 of the Act into local development that is not designated development, or part of any such development.
(3)  In the case of designated development or other advertised development for which the relevant submission period exceeds 30 days, the 60-day period is to be increased by that part of the submission period that exceeds 30 days, despite subclause (1).
(4)  If the relevant submission period for a development application for designated development is more than 30 days, the consent authority is to notify the applicant of the period and the effect of the extension of the period on the operation of this Division for the purposes of section 82 of the Act.
Note.
 Clause 107 provides that certain periods of time are to be ignored when calculating a 40-day or 60-day period under this clause. Deemed refusal provisions do not apply to development under section 80 (7) of the Act (where a public inquiry is held into designated development) or to any State significant development for which a public inquiry is held.
113A   Public participation: application under section 82A of the Act for review of council’s determination
(1)  This clause applies to an application under section 82A of the Act for review by a council of its determination of a development application.
(2)  An application to which this clause applies must be notified or advertised for a period not exceeding 14 days, but otherwise in the same manner as the original development application was notified or advertised.
(3)  However, if the application is made to a council that has provided in a development control plan for the notification or advertising of such an application, the application is to be notified or advertised in accordance with the development control plan.
(4)  The council must cause copies of the application to be given to each concurrence authority for the development to which the application relates.
(5)  The notice or advertisement referred to in subclause (2) must contain the following information:
(a)  a brief description of the original development application and the land to which it relates,
(b)  a statement that submissions concerning the application for review may be made to the council within the period referred to in section 82A (4) (b) of the Act.
(6)  For the purposes of section 82A (4) (b) of the Act, the period within which submissions may be made in relation to such an application is the period specified:
(a)  in subclause (2), except as provided by paragraph (b), or
(b)  if the council has made a development control plan specifying such a period, in the development control plan.
(7)  During the period referred to in subclause (2) or, if a development control plan provides for a period for notification or advertising of an application, during that period, any person may inspect the application and any accompanying information and make extracts from or copies of them.
Division 12 Development consents—extension, completion and modification
114   What is the form for an application for extension of a development consent?
(cf clause 71 of EP&A Regulation 1994)
An application under section 95A of the Act for the extension of time to commence development:
(a)  must be in writing, and
(b)  must identify the development consent to which it relates, and
(c)  must indicate why the consent authority should extend the time.
114A   Applications to extend lapsing period for consent for State significant development
An application under section 95B of the Act to extend the lapsing period for consent for State significant development:
(a)  must be in writing, and
(b)  must identify the development consent to which it relates, and
(c)  must show the matters referred to in section 95B (4) of the Act.
115   What are the requirements for an application for modification of a development consent?
(cf clause 71A of EP&A Regulation 1994)
(1)  An application for modification of a development consent under section 96 (1), (1A) or (2) or 96AA (1) of the Act must contain the following information:
(a)  the name and address of the applicant,
(b)  a description of the development to be carried out under the consent (as previously modified),
(c)  the address, and formal particulars of title, of the land on which the development is to be carried out,
(d)  a description of the proposed modification to the development consent,
(e)  a statement that indicates either:
(i)  that the modification is merely intended to correct a minor error, misdescription or miscalculation, or
(ii)  that the modification is intended to have some other effect, as specified in the statement,
(f)  a description of the expected impacts of the modification,
(g)  an undertaking to the effect that the development (as to be modified) will remain substantially the same as the development that was originally approved,
(h)  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 making of the application,
(i)  a statement as to whether the application is being made to the Court (under section 96) or to the consent authority (under section 96AA),
and, if the consent authority so requires, must be in the form approved by that authority.
(1A)  In addition, an application for the modification of a development consent under section 96 (2) or 96AA (1) of the Act, if it relates to residential flat development for which the development application was required to be accompanied by a design verification from a qualified designer under clause 50 (1A), must be accompanied by a design verification from a qualified designer, being a statement in which the qualified designer verifies that:
(a)  he or she designed, or directed the design, of the modification of the residential flat development, and
(b)  the residential flat development, as modified, achieves the design quality principles set out in Part 2 of State Environmental Planning Policy No 65—Design Quality of Residential Flat Development, and
(c)  the modifications do not diminish or detract from the design quality, or compromise the design intent, of the development for which the development consent was granted.
(1B)  The consent authority may refer the proposed modification to the relevant design review panel.
(1C)  An application for the modification of a development consent under section 96 (1A) or (2) of the Act, if it relates to development for which the development application was required to be accompanied by one or more BASIX certificates, must also be accompanied by appropriate BASIX certificates.
(1D)  The appropriate BASIX certificates for the purposes of subclause (1C) are:
(a)  to the extent to which any current BASIX certificate remains consistent with the proposed development, the current BASIX certificate, and
(b)  to the extent to which any current BASIX certificate is no longer consistent with the proposed development, a new BASIX certificate to replace the current BASIX certificate.
(2)  The application must be accompanied by the fee prescribed by clause 258.
(3)  A development consent may not be modified by the Land and Environment Court under section 96 of the Act if an application for modification of the consent has been made to the consent authority under section 96AA of the Act and has not been withdrawn.
116   Applications for modification of development consents granted by the Land and Environment Court or the Minister
(cf clause 72 of EP&A Regulation 1994)
(1)  The object of this clause is to vary the requirements of the Act in relation to the modification of development consents granted by the Land and Environment Court or by the Minister.
(2)    (Repealed)
(3)  A copy of an application for the modification of such a development consent is not to be lodged with the Court, but with the consent authority that dealt with the original development application from which that consent arose.
(4)  A copy of the application for modification of a development consent granted by the Minister under section 80 (7) of the Act is to be lodged with the council.
117   Public participation—applications for modification of development consents involving minimal environmental impact
(1)  This clause applies to an application under section 96 (1A) of the Act or under section 96AA of the Act in respect of a modification which, in the opinion of the consent authority, is of minimal environmental impact.
(2)  If an application to which this clause applies is required by a development control plan to be notified or advertised and the development consent was granted by the Court on appeal, the application must be so notified or advertised by the consent authority to which the original development application was made.
(3)  A consent authority referred to in subclause (2) must, in the case of an application under section 96 (1A) of the Act, notify the Court of:
(a)  the manner in which the application was notified or advertised, and
(b)  any submission period required by the development control plan, and
(c)  the date (or dates) on which the application was notified or advertised.
(4)  If a development control plan provides for a period for notification or advertising of an application, any person during that period may inspect the application and any accompanying information and make extracts from or copies of them.
118   Public participation—application under sections 96 (2) and 96AA for modification of certain development consents
(cf clause 72A of EP&A Regulation 1994)
(1)  This clause applies to an application under section 96 (2) or 96AA (1) of the Act to modify a development consent if the original development application for the consent was an application to carry out any of the following:
(a)  designated development,
(b)  State significant advertised development,
(c)  any other advertised development where the application was made to a consent authority other than a council.
(2)  Notice of the application must be published in a local newspaper by the relevant consent authority, that is:
(a)  by the consent authority that granted the development consent, or
(b)  by the consent authority to which the original development application was made, if development consent was granted by the Court on appeal.
(3)  The relevant consent authority must also cause notice of the application to be given to each person who made a submission in relation to the original development application.
(4)  A consent authority referred to in subclause (2) (b) must, in the case of an application under section 96 (2) of the Act, notify the Court of the date on which notice of the application is published under subclause (2).
(5)  The notice published under subclause (2) must contain the following information:
(a)  a brief description of the development consent, the land to which it relates and the details of the modification sought,
(b)  a statement that written submissions concerning the proposed modification may be made to the consent authority that publishes the notice within the period specified in accordance with paragraph (c),
(c)  the period during which the application may be inspected at the principal office of the consent authority that publishes the notice,
(d)  a statement that, if the application is approved, there is no right of appeal to the Court by an objector.
(6)  For the purposes of sections 96 (2) (d) and 96AA (1) (d) of the Act, the period referred to in subclause (5) (c) must be a period of at least 14 days commencing on the day after which notice of the application for modification is first published in a local newspaper.
(7)  During the period referred to in subclause (5) (c), any person may inspect the application and any accompanying information and make extracts from or copies of them.
119   Public participation—application under sections 96 (2) and 96AA for modification of other development consents
(1)  This clause applies to an application under section 96 (2) of the Act to which clause 118 does not apply or under section 96AA (1) of the Act to which clauses 117 and 118 do not apply.
(2)  An application to which this clause applies must be notified or advertised for a period not exceeding 14 days but otherwise in the same manner as the original development application was notified or advertised.
(3)  However, if the application is made to a council that has provided in a development control plan for the notification or advertising of such an application (or has provided that such an application is not required to be notified or advertised), the application is to be notified or advertised in accordance with the development control plan.
(4)  If an application to which this clause applies is required by this clause or a development control plan to be notified or advertised and the development consent was granted by the Court on appeal, the application must be so notified or advertised by the council to which the original development application was made.
(5)  A council referred to in subclause (4) must, in the case of an application under section 96 (2) of the Act, notify the Court of:
(a)  the manner in which the application was notified or advertised, and
(b)  any submission period required by the development control plan, and
(c)  the date (or dates) on which the application was notified or advertised.
(6)  During the period referred to in subclause (2) or, if a development control plan provides for a period for notification or advertising of an application, during that period, any person may inspect the application and any accompanying information and make extracts from or copies of them.
120   Notification of concurrence authorities and approval bodies
As soon as practicable after receiving an application for the modification of a development consent, a consent authority must cause a copy of the application to be given to each concurrence authority and approval body for the development to which the application relates.
121   Applications for modifications of development consents to be kept available for public inspection
(cf clause 73 of EP&A Regulation 1994)
(1)  An application for the modification of a development consent must be made available for inspection by the consent authority that published the notice of the application.
(2)  The application:
(a)  must be available at the consent authority’s principal office, free of charge, during the consent authority’s ordinary office hours, and
(b)  must be available for the period specified in the notice referred to in subclause (1).
122   Notice of determination of application to modify development consent
(cf clause 73A of EP&A Regulation 1994)
(1)  Notice in writing of the determination of an application for the modification of a development consent must be given to the applicant as soon as practicable after the determination is made.
(1A)  A notice of determination of an application granted for the modification of a development consent must include a copy of any relevant plans endorsed by the consent authority.
(2)  If the determination is made subject to conditions or by refusing the application, the notice:
(a)  must indicate the consent authority’s reasons for the imposition of the conditions or the refusal, and
(b)  must state that the Act gives a right of appeal against the determination, unless:
(i)  the development is State significant development that has been determined following a public inquiry under section 119 of the Act, or
(ii)  the development consent was granted by the Court.
123   Persons to be informed of proposed revocation or modification of consent under section 96A (3) of the Act
(cf clause 73B of EP&A Regulation 1994)
(1)  For the purposes of section 96A (3) (a) (ii) of the Act, the Director-General of the Department of Fair Trading is a prescribed person if the proposed revocation or modification affects:
(a)  the transfer, alteration, repair or extension of water service pipes, or
(b)  the carrying out of sanitary plumbing work, sanitary drainage work or stormwater drainage work.
(2)  The notification of the proposed revocation or modification of a consent or a complying development certificate must include the reasons for the proposed revocation or modification.
123A   Effect of amendments made by Land and Environment Court Amendment Act 2002
(1)  The Act, as in force immediately before the commencement of the Land and Environment Court Amendment Act 2002, continues to apply to and in respect of:
(a)  a review of a determination requested under section 82A of the Act, but not completed, before that commencement, and
(b)  an appeal made under section 97 of the Act, but not finally determined, before that commencement.
(2)  The Act, as in force immediately before the commencement of the Land and Environment Court Amendment Act 2002, continues to apply to and in respect of the modification of a development consent the application for which was made, but not finally determined, before that commencement.
Division 13 Validity of development consents
124   What are the public notification procedures for the purposes of section 101 of the Act?
(cf clause 74 of EP&A Regulation 1994)
(1)  The granting of a development consent is publicly notified for the purposes of section 101 of the Act if:
(a)  public notice in a local newspaper is given:
(i)  by the consent authority, or
(ii)  if the consent authority is not the council, by the consent authority or the council, and
(b)  the notice describes the land and the development the subject of the development consent, and
(c)  the notice contains a statement that the development consent is available for public inspection, free of charge, during ordinary office hours:
(i)  at the consent authority’s principal office, or
(ii)  if the consent authority is not the council, at the consent authority’s office or the council’s principal office.
(2)  Nothing in this clause confers a right or entitlement to inspect, make copies of or take extracts from so much of a document that, because of section 12 (1A) of the Local Government Act 1993, a person does not have the right to inspect.
Part 7 Procedures relating to complying development certificates
Division 1 Applications for complying development certificates
125   Application of Part
(cf clause 75 of EP&A Regulation 1994)
This Part applies to complying development.
126   How must an application for a complying development certificate be made?
(cf clause 75A of EP&A Regulation 1994)
(1)  An application for a complying development certificate:
(a)  must contain the information, and be accompanied by the documents, specified in Part 2 of Schedule 1, and
(b)  if the certifying authority so requires, must be in the form approved by that authority, and
(c)  must be delivered by hand, sent by post or transmitted electronically to the principal office of the council or the accredited certifier, but may not be sent by facsimile transmission.
(2)  Immediately after it receives an application for a complying development certificate, the council or accredited certifier must endorse the application with the date of its receipt.
127   Council or accredited certifier may require additional information
(cf clause 76 of EP&A Regulation 1994)
(1)  A council or accredited certifier may require the applicant for a complying development certificate to give the council or accredited certifier any additional information concerning the proposed development that is essential to the council’s or accredited certifier’s proper consideration of the application.
(2)  Nothing in this clause affects the council’s or accredited certifier’s duty to determine an application for a complying development certificate.
128   Council or accredited certifier to supply application form for complying development certificates
(cf clause 76A of EP&A Regulation 1994)
If the council or accredited certifier requires an application for a complying development certificate to be in a particular form, it must provide any person intending to make such an application with blank copies of that form.
129   Copyright in documents forming part of or accompanying applications for complying development certificates—applicant’s indemnification
(cf clause 76B of EP&A Regulation 1994)
Upon an application being made under section 85A (1) of the Act for a complying development certificate, the applicant (not being entitled to copyright) is taken to have indemnified all persons using the application and any accompanying documents in accordance with the Act against any claim or action in respect of breach of copyright.
129A   Amendments with respect to BASIX commitments
(1)  This clause applies to an application for a complying development certificate that has been accompanied by a BASIX certificate pursuant to clause 4A of Schedule 1.
(2)  An application for a complying development certificate may be amended or varied by the lodging of:
(a)  a new BASIX certificate to replace a BASIX certificate that accompanied the application, or to replace any subsequent BASIX certificate lodged under this clause, and
(b)  if any new accompanying document is required or any existing accompanying document requires amendment, a new or amended accompanying document.
(3)  If an amendment or variation of an application for a complying development certificate, or of any accompanying document, results in the proposed development differing in any material respect from the description contained in a current BASIX certificate for the development, the application to amend or vary the application for the complying development certificate must have annexed to it a replacement BASIX certificate whose description takes account of the amendment or variation.
(4)  In this clause, a reference to the accompanying document is a reference to any document required to accompany an application for a complying development certificate pursuant to clause 4 of Schedule 1.
Division 2 Determination of applications and commencement of complying development
130   Procedure for determining application for complying development certificate
(cf clause 77 of EP&A Regulation 1994)
(1)  A certifying authority must not issue a complying development certificate for building work unless it is satisfied that the proposed building (not being a temporary building) will comply with the relevant requirements of the Building Code of Australia (as in force at the time the application for the certificate was made).
(2)  In the case of complying development that is required to comply with the deemed-to-satisfy provisions of Volume One, or Section 3 of Volume Two, of the Building Code of Australia, a complying development certificate cannot authorise compliance with an alternative solution to the performance requirements corresponding to those deemed-to-satisfy provisions.
(3)  Evidence of the issue of a complying development certificate must be endorsed by the council or the accredited certifier on any plans, specifications and any other documents that were lodged with the application for the certificate or submitted to the accredited certifier in accordance with clause 126.
(4)  For the purposes of section 85A (11) (b) of the Act, the accredited certifier must cause notice of his or her determination of an application for a complying development certificate to be given to the council by forwarding to it, within 2 days after the date of the determination, copies of:
(a)  the determination, together with the application to which it relates, and
(b)  any endorsed plans, specifications or other documents that were lodged with the application or submitted to the accredited certifier in accordance with clause 127, and
(c)  any complying development certificate issued as a result of the determination, together with any associated fire safety schedule or fire link conversion schedule.
131   Development standards for building work associated with a change of building use
(1)  This clause applies to development for which a complying development certificate is sought comprising a change of building use of an existing building.
(2)  The development standards applicable to such development include the following requirements:
(a)  that, on completion of any building work, the fire protection and structural capacity of the building will be appropriate to the proposed new use, and
(b)  that, whether or not any building work is carried out, the building will comply with such of the Category 1 fire safety provisions as are applicable to the proposed new use,
assuming that any building work is carried out in accordance with the plans and specifications to which the complying development certificate relates and any conditions to which the complying development certificate is subject.
132   Development standards for building work involving the alteration, enlargement or extension of an existing building
(1)  This clause applies to development for which a complying development certificate is sought comprising building work that involves the alteration, enlargement or extension of an existing building in circumstances in which no change of building use is proposed.
(2)  The development standards applicable to such development include the requirement that, on completion of the building work, the fire protection and structural capacity of the building will not be reduced.
(3)  That requirement assumes that the building work is carried out in accordance with the plans and specifications to which the complying development certificate relates and any conditions to which the complying development certificate is subject.
133   
(Renumbered as clause 136A)
134   Form of complying development certificate
(1)  A complying development certificate must contain the following information:
(a)  the identity of the certifying authority by which it is granted,
(b)  if the certifying authority is an accredited certifier:
(i)  his or her accreditation number, and
(ii)  the name of the accreditation body by which he or she is accredited,
(c)  the date of the certificate,
(d)  the date on which the certificate lapses,
(e)  a statement to the effect that the development is complying development and (if carried out as specified in the certificate) will comply with all development standards applicable to the development and with such other requirements prescribed by this regulation concerning the issue of the certificate,
(f)  if the development involves the erection of a building, the class of the building under the Building Code of Australia,
(g)  any conditions imposed on the development under this Regulation.
(2)  A complying development certificate for the erection of a building must be accompanied by a fire safety schedule for the building.
(2A)  A complying development certificate for any development must include a copy of any relevant plans endorsed by the consent authority.
(3)  Subclause (2) does not apply to:
(a)  a class 1a or class 10 building within the meaning of clause 167, or
(b)  a complying development certificate that relates only to fire link conversion.
Note.
 The documents that must be issued with and accompany a complying development certificate that relates only to fire link conversion are set out in clause 168A.
135   Notice under section 86 of the Act of appointment of principal certifying authority
(cf clause 77A of EP&A Regulation 1994)
A notice given under or for the purposes of section 86 (1) (a1) (i) or (2) (a1) of the Act must contain the following information:
(a)    (Repealed)
(b)  a description of the work to be carried out,
(c)  the address of the land on which the work is to be carried out,
(d)  the registered number and date of issue of the relevant complying development certificate,
(e)  the name and address of the principal certifying authority, and of the person by whom the principal certifying authority was appointed,
(f)  if the principal certifying authority is an accredited certifier:
(i)  his or her accreditation number, and
(ii)  the name of the accreditation body by which he or she is accredited, and
(iii)  a statement signed by the accredited certifier to the effect that he or she consents to being appointed as principal certifying authority, and
(iv)  a telephone number on which he or she may be contacted for business purposes,
and, if the consent authority so requires, must be in the form approved by that authority.
135A   Notice under section 86 of the Act of critical stage inspections
A notice given under section 86 (1) (a1) (ii) of the Act must contain the following information:
(a)  the name and address of the principal certifying authority by whom the notice is given,
(b)  a telephone number on which the principal certifying authority can be contacted for business purposes,
(c)  the registered number of the complying development certificate,
(d)  a description of the work to be carried out,
(e)  the address of the land at which the work is to be carried out,
(f)  a list of the critical stage inspections and other inspections required to be carried out in respect of the work.
136   Notice under section 86 of the Act of intention to commence subdivision work or erection of building
(cf clause 77A of EP&A Regulation 1994)
A notice given under or for the purposes of section 86 (1) (b) or (2) (b) of the Act must contain the following information:
(a)  the name and address of the person by whom the notice is being given,
(b)  a description of the work to be carried out,
(c)  the address of the land on which the work is to be carried out,
(d)  the registered number and date of issue of the relevant complying development certificate,
(e)  the date on which the work is intended to commence,
and, if the consent authority so requires, must be in the form approved by that authority.
Division 2A Conditions of complying development certificate
136A   Compliance with Building Code of Australia and insurance requirements under the Home Building Act 1989
(cf clauses 78 and 78A of EP&A Regulation 1994)
(1)  A complying development certificate for development that involves any building work must be issued subject to the following conditions:
(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 must be entered into and be in force before any building work authorised to be carried out by the certificate commences.
(2)  This clause does not limit any other conditions to which a complying development certificate may be subject, as referred to in section 85A (6) (a) of the Act.
(3)  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.
(4)  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 complying development certificate is made.
136B   Erection of signs
(1)  A complying development certificate for development that involves any building work, subdivision work or demolition work must be issued subject to a condition that the requirements of subclauses (2) and (3) are complied with.
(2)  A sign must be erected in a prominent position on any site on which building work, subdivision work or demolition work is being carried out:
(a)  showing the name, address and telephone number of the principal certifying authority for the work, and
(b)  showing the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working hours, and
(c)  stating that unauthorised entry to the site is prohibited.
(3)  Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out, but must be removed when the work has been completed.
(4)  This clause does not apply in relation to building work, subdivision work or demolition work that is carried out inside an existing building, that does not affect the external walls of the building.
(5)  This clause does not apply in relation to Crown building work that is certified, in accordance with section 116G of the Act, to comply with the technical provisions of the State’s building laws.
(6)  This clause applies to a complying development certificate issued before 1 July 2004 only if the building work, subdivision work or demolition work involved had not been commenced by that date.
Note.
 Principal certifying authorities and principal contractors must also ensure that signs required by this clause are erected and maintained (see clause 227A which currently imposes a maximum penalty of $1,100).
136C   Notification of Home Building Act 1989 requirements
(1)  A complying development certificate for development that involves any residential building work within the meaning of the Home Building Act 1989 must be issued subject to a condition that the work is carried out in accordance with the requirements of this clause.
(2)  Residential building work within the meaning of the Home Building Act 1989 must not be carried out unless the principal certifying authority for the development to which the work relates (not being the council) has given the council written notice of the following information:
(a)  in the case of work for which a principal contractor is required to be appointed:
(i)  the name and licence number of the principal contractor, and
(ii)  the name of the insurer by which the work is insured under Part 6 of that Act,
(b)  in the case of work to be done by an owner-builder:
(i)  the name of the owner-builder, and
(ii)  if the owner-builder is required to hold an owner-builder permit under that Act, the number of the owner-builder permit.
(3)  If arrangements for doing the residential building work are changed while the work is in progress so that the information notified under subclause (2) becomes out of date, further work must not be carried out unless the principal certifying authority for the development to which the work relates (not being the council) has given the council written notice of the updated information.
(4)  This clause does not apply in relation to Crown building work that is certified, in accordance with section 116G of the Act, to comply with the technical provisions of the State’s building laws.
136D   Fulfilment of BASIX commitments
(1)  This clause applies:
(a)  on and from 1 July 2004, to all land within the initial BASIX area, and
(b)  on and from 1 July 2005, to all land within New South Wales.
(2)  This clause applies to all development:
(a)  that involves the erection (but not the alteration, enlargement, extension or relocation) of a BASIX affected building, or
(b)  that involves a change of building use by which a building becomes a BASIX affected building.
(3)  A complying development certificate for development to which this clause applies must be issued subject to a condition that the commitments listed in each relevant BASIX certificate for the development must be fulfilled.
Division 3 Validity of complying development certificates
137   What are the public notification procedures for the purposes of section 101 of the Act?
(cf clause 77B of EP&A Regulation 1994)
(1)  The determination of an application for a complying development certificate is publicly notified for the purposes of section 101 of the Act:
(a)  if public notice in a local newspaper is given by the council or an accredited certifier, and
(b)  if the notice describes the land and the development the subject of the complying development certificate, and
(c)  if the notice contains a statement that the determination of the application for a complying development certificate is available for public inspection, free of charge, during ordinary office hours at the council’s offices.
(2)  If the public notification is given by an accredited certifier, the accredited certifier must send a copy of the page of the newspaper in which notice of the complying certificate was published to the council within 7 days after the notice is published.
(3)  Nothing in this clause confers a right or entitlement to inspect, make copies of or take extracts from so much of a document that, because of section 12 (1A) of the Local Government Act 1993, a person does not have the right to inspect.
Part 8 Certification of development
Division 1 Compliance certificates
138   Compliance certificates
(cf clause 79 of EP&A Regulation 1994)
(1)  A compliance certificate must contain the following information:
(a)  the identity of the certifying authority by which it is granted,
(b)  if the certifying authority is an accredited certifier:
(i)  his or her accreditation number,
(ii)  the name of the accreditation body by which he or she is accredited,
(c)  a description of the development being carried out,
(d)  the registered number and date of issue of any relevant development consent or complying development certificate,
(e)  the address, and formal particulars of title, of the land on which the development is being carried out,
(f)  the date of the certificate,
(g)  a description of any work that has been inspected, how the work has been inspected and the date and time when the work was inspected,
(h)  a statement, signed by or on behalf of the certifying authority, as to the matters in respect of which the certificate is given.
Note.
 Section 109C of the Act identifies the various matters in respect of which a compliance certificate may be given.
(2)  A compliance certificate must be accompanied by any documents referred to in the certificate, being documents concerning matters in respect of which the certificate is given.
(3)  A copy of each compliance certificate relied on in issuing an occupation certificate must be forwarded to the consent authority and the council when a certifying authority notifies them of the issue of an occupation certificate.
Division 2 Construction certificates
139   How must an application for a construction certificate be made?
(cf clause 79A of EP&A Regulation 1994)
(1)  An application for a construction certificate:
(a)  must contain the information, and be accompanied by the documents, specified in Part 3 of Schedule 1, and
(b)  if the certifying authority so requires, must be in the form approved by that authority, and
(c)  must be delivered by hand, sent by post or transmitted electronically to the principal office of the certifying authority, but may not be sent by facsimile transmission.
(2)  Immediately after it receives an application for a construction certificate, the certifying authority must endorse the application with the date of its receipt.
139A   Withdrawal of application for construction certificate
(1)  An application for a construction certificate may be withdrawn at any time prior to its determination by service on the certifying authority to which it was made of a notice to that effect signed by the applicant.
(2)  The certifying authority may (but is not required to) refund to the applicant the whole or any part of the application fee paid in connection with an application that has been withdrawn.
140   Certifying authority may require additional information
(cf clause 79B of EP&A Regulation 1994)
(1)  A certifying authority may require the applicant for a construction certificate to give the certifying authority any additional information concerning the proposed building or subdivision work that is essential to the certifying authority’s proper consideration of the application.
(2)  Nothing in this clause affects the certifying authority’s duty to determine an application for a construction certificate.
141   Certifying authority to supply application form for construction certificates
(cf clause 79C of EP&A Regulation 1994)
If a certifying authority requires an application for a construction certificate to be in a particular form, it must provide any person intending to make such an application with blank copies of that form.
142   Procedure for determining application for construction certificate
(cf clause 79D of EP&A Regulation 1994)
(1)  The determination of an application for a construction certificate must be in writing and must contain the following information:
(a)  the date on which the application was determined,
(b)  whether the application has been determined:
(i)  by approval, or
(ii)  by refusal, and
(c)  if the application has been determined by refusal:
(i)  the reasons for the refusal, and
(ii)  if the certifying authority is a consent authority, of the applicant’s right of appeal under the Act against the refusal,
(d)  if a construction certificate has been issued subject to conditions of the kind referred to in clause 187 or 188:
(i)  the reasons for the conditions, and
(ii)  if the certifying authority is a consent authority, of the applicant’s right of appeal under the Act against any such conditions.
(2)  The certifying authority must cause notice of its determination to be given to the consent authority, and to the council, by forwarding to it, within 2 days after the date of the determination, copies of:
(a)  the determination, together with the application to which it relates, and
(b)  any construction certificate issued as a result of the determination, and
(c)  any plans and specifications in relation to which such a construction certificate has been issued, and
(d)  any fire safety schedule or fire link conversion schedule attached to such a construction certificate, and
(e)  any other documents that were lodged with the application for the certificate (such as any relevant decision on an objection under clause 187 or 188) or given to the certifying authority under clause 140.
Note.
 See also clause 168 which requires a fire safety schedule to be attached to a construction certificate when it is issued.
(3)  In this Part, a reference to the issuing of a construction certificate includes a reference to the endorsement of the construction certificate on any relevant plans and specifications, as referred to in section 109C (1) (b) of the Act.
143   Fire protection and structural capacity
(cf clause 79E of EP&A Regulation 1994)
(1)  A certifying authority must not issue a construction certificate for building work under a development consent that authorises a change of building use unless:
(a)  it is satisfied that the fire protection and structural capacity of the building will be appropriate to its new use, and
(b)  it is satisfied that the building will comply with such of the Category 1 fire safety provisions as are applicable to the new use,
assuming that the building work is carried out in accordance with the plans and specifications to which the construction certificate relates and any conditions to which the construction certificate is subject.
(2)  Subclause (1) (b) 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).
(3)  In the case of building work that involves the alteration, enlargement or extension of an existing building in circumstances in which no change of building use is proposed, a certifying authority must not issue a construction certificate for the work unless it is satisfied that, on completion of the building work, the fire protection and structural capacity of the building will not be reduced, assuming that the building work is carried out in accordance with the plans and specifications to which the construction certificate relates and any conditions to which the construction certificate is subject.
(4)  This clause does not apply to building work required by a consent authority as a condition of a development consent that authorises a change of building use.
143A   Special requirements for construction certificates for residential flat development
(1)  This clause applies to residential flat development for which the development application was required to be accompanied by a design verification from a qualified designer under clause 50 (1A).
(2)  A certifying authority must not issue a construction certificate for residential flat development unless the certifying authority has received a design verification from a qualified designer, being a statement in which the qualified designer verifies that the plans and specifications achieve or improve the design quality of the development for which development consent was granted, having regard to the design quality principles set out in Part 2 of State Environmental Planning Policy No 65—Design Quality of Residential Flat Development.
144   Referral of certain plans and specifications to New South Wales Fire Brigades
(cf clause 79F of EP&A Regulation 1994)
(1)  This clause applies to:
(a)  a class 9a building that is proposed to have a total floor area of 2,000 square metres or more, or
(b)  a building (other than a class 9a building) that is proposed to have:
(i)  a fire compartment with a total floor area of more than 2,000 square metres, or
(ii)  a total floor area of more than 6,000 square metres,
where:
(c)  the building is the subject of an application for erection, rebuilding, alteration, enlargement or extension, and
(d)  the plans and specifications for the erection, rebuilding, alteration, enlargement or extension provide for an alternative solution to meet the performance requirements contained in any one or more of the Category 2 fire safety provisions.
(2)  As soon as practicable after receiving an application for a construction certificate for a building to which this clause applies, the certifying authority must forward to the Fire Commissioner:
(a)  a copy of the application, and
(b)  a copy of the plans and specifications for the building, and
(c)  details of the performance requirements that the alternative solution is intended to meet, and
(d)  details of the assessment methods to be used to establish compliance with those performance requirements,
which may be delivered by hand, forwarded by post or transmitted electronically, but may not be sent by facsimile transmission.
(3)  The Fire Commissioner must furnish the certifying authority with an initial fire safety report for the building.
(4)  An initial fire safety report may recommend conditions to be imposed on the erection, rebuilding, alteration, enlargement or extension of the building to which the report relates.
(5)  The certifying authority must not issue a construction certificate for a building to which this clause applies unless:
(a)  it has received an initial fire safety report for the building and has taken the report into consideration, or
(b)  at least 23 days have elapsed since the plans and specifications were forwarded to the Fire Commissioner but no such report has been received by the certifying authority.
(6)  If the certifying authority does not adopt any recommendation in an initial fire safety report:
(a)  because the report had not been received when the construction certificate was issued, or
(b)  because the certifying authority does not agree with the recommendation,
the certifying authority must cause written notice to be given to the Fire Commissioner of the fact that it has not adopted the recommendation and of the reasons why it has not adopted the recommendation.
(7)  If the certifying authority adopts any condition recommended by an initial fire safety report:
(a)  it must ensure that the terms of the recommended condition have been included in the plans and specifications for the building work, in the case of a condition whose terms are capable of being so included, or
(b)  it must attach to the construction certificate a condition in the same terms as those of the recommended condition, in the case of a condition whose terms are not capable of being so included.
(8)  Compliance with the requirement that the terms of a recommended condition be included in the plans and specifications for building work is sufficiently complied with:
(a)  if the plans and specifications are redrawn so as to accord with those terms, or
(b)  if those terms are included by way of an annotation (whether by way of insertion, deletion or alteration) marked on the relevant part of those plans and specifications.
(9)  In this clause:
initial fire safety report means a written report specifying whether or not the Fire Commissioner is satisfied, on the basis of the documents referred to in subclause (2):
(a)  that the alternative solution will meet such of the performance requirements as it is intended to meet, and
(b)  that the fire hydrants in the proposed fire hydrant system will be accessible for use by New South Wales Fire Brigades, and
(c)  that the couplings in the system will be compatible with those of the fire appliances and equipment used by New South Wales Fire Brigades.
145   Compliance with development consent and Building Code of Australia
(cf clause 79G of EP&A Regulation 1994)
(1)  A certifying authority must not issue a construction certificate for building work unless it is satisfied of the following matters:
(a1)  that the plans and specifications for the building include such matters as each relevant BASIX certificate requires,
(a)  that the design and construction of the building (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 140) are not inconsistent with the development consent,
(b)  that the proposed building (not being a temporary building) will comply with the relevant requirements of the Building Code of Australia (as in force at the time the application for the construction certificate was made).
(2)  A certifying authority must not issue a construction certificate for subdivision work unless it is satisfied that the design and construction of the work (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 140) are not inconsistent with the development consent.
(3)  Subclause (1) (b) 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).
146   Compliance with conditions of development consent
(cf clause 79H of EP&A Regulation 1994)
A certifying authority must not issue a construction certificate for building work or subdivision work under a development consent unless it is satisfied that each of the following have been complied with:
(a)  each condition or agreement requiring the provision of security before work is carried out in accordance with the consent (as referred to in section 80A (6) of the Act),
(b)  each condition requiring the payment of a monetary contribution or levy before work is carried out in accordance with the consent (as referred to in section 94 or 94A of the Act),
(c)  each other condition of the development consent that must be complied with before a construction certificate may be issued in relation to the building work or subdivision work.
147   Form of construction certificate
(cf clause 79I of EP&A Regulation 1994)
(1)  A construction certificate must contain the following information:
(a)  the identity of the certifying authority by which it is granted,
(b)  if the certifying authority is an accredited certifier:
(i)  his or her accreditation number, and
(ii)  the name of the accreditation body by which he or she is accredited,
(c)  the registered number and date of issue of any relevant development consent,
(d)  the date of the certificate,
(e)  a statement to the effect that work completed in accordance with documentation accompanying the application for the certificate (with such modifications verified by the certifying authority as may be shown on that documentation) will comply with the requirements of this Regulation as are referred to in section 81A (5) of the Act,
(f)  the classification (in accordance with the Building Code of Australia) of the building to which the certificate relates.
(1A)  A construction certificate may indicate different classifications for different parts of the same building.
(2)  A construction certificate for a building must be accompanied by a fire safety schedule for the building.
(3)  Subclause (2) does not apply to:
(a)  a class 1a or class 10 building within the meaning of clause 167, or
(b)  a construction certificate that relates only to fire link conversion.
Note.
 The documents that must be issued with and accompany a construction certificate that relates only to fire link conversion are set out in clause 168A.
148   Modification of construction certificate
(cf clause 79IA of EP&A Regulation 1994)
(1)  A person who has made an application for a construction certificate and a person having the benefit of a construction certificate may apply to modify the development the subject of the application or certificate.
(2)  This Division applies to an application to modify development in the same way as it applies to the original application.
(3)  As soon as practicable after granting an application to modify development in respect of which an application for a construction certificate has previously been referred to the Fire Commissioner under clause 144, but for which (in its modified form) an application for a construction certificate for a building would no longer be required to be so referred, a certifying authority must notify the Fire Commissioner that the building to which the construction certificate relates is no longer a building to which clause 144 applies.
Division 3 Occupation certificates
149   Applications for occupation certificates
(cf clause 79J of EP&A Regulation 1994)
(1)  An application for an occupation certificate must contain the following information:
(a)  the name and address of the applicant,
(b)  a description of the building to which the application relates, including the existing and new classifications of the building under the Building Code of Australia, as identified by the development consent,
(c)  the address, and formal particulars of title, of the land on which the building to which the application relates is situated,
(d)  the type of occupation certificate applied for (that is, interim or final),
(e)  a list of the documents accompanying the application,
and, if the certifying authority so requires, must be in the form approved by that authority.
(2)  The application must be accompanied by the following documents:
(a)  a copy of the relevant development consent or complying development certificate,
(b)  a copy of any relevant construction certificate,
(c)  a copy of any relevant fire safety certificate,
(d)  a copy of any relevant compliance certificate.
(2A)  In the case of an application with respect to development the subject of a condition requiring commitments listed in a BASIX certificate to be fulfilled, the application must also be accompanied by a copy of each relevant BASIX certificate for the development.
(3)  The application must be delivered by hand, sent by post or transmitted electronically to the principal office of the certifying authority, but may not be sent by facsimile transmission.
(4)  Immediately after it receives an application for an occupation certificate, the certifying authority must endorse the application with the date of its receipt.
150   Certifying authorities to supply application form for occupation certificates
(cf clause 79K of EP&A Regulation 1994)
If a certifying authority requires an application for an occupation certificate to be in a particular form, it must provide any person intending to make such an application with blank copies of that form.
151   Procedure for determining application for occupation certificate
(cf clause 79L of EP&A Regulation 1994)
(1)  The determination of an application for an occupation certificate must be in writing and must contain the following information:
(a)  the date on which the application was determined, and
(b)  whether the application has been determined:
(i)  by approval, or
(ii)  by refusal, and
(c)  if the application has been determined by refusal:
(i)  the reasons for the refusal, and
(ii)  if the certifying authority is a consent authority and the application relates to a final occupation certificate, of the applicant’s right of appeal under the Act against the refusal.
(2)  The certifying authority must notify the consent authority and the council of the determination by forwarding the following documents to the council within 2 days after the date of the determination:
(a)  a copy of the determination,
(b)  copies of any documents that were lodged with the application for the certificate,
(c)  if an occupation certificate was issued, a copy of the certificate,
(d)  a copy of the record required to be made of each of the following:
(i)  all critical stage inspections and any other inspections carried out because they were required by the principal certifying authority under section 109E (3) (d) of the Act,
(ii)  any inspection carried out under clause 162A (4A) (a),
(iii)  any missed inspection to which clause 162C applies,
(e)  a copy of any compliance certificate and of any other documentary evidence, whether or not of a kind referred to in Part A2, clause A2.2, of the Building Code of Australia, relied on in issuing the occupation certificate.
152   Reports of Fire Commissioner: section 109H
(cf clause 79M of EP&A Regulation 1994)
(1)  This clause applies to a building to which clause 144 applies.
(2)  Unless it has already refused such an application, a certifying authority must request the Fire Commissioner to furnish it with a final fire safety report for a building as soon as practicable after receiving an application for an occupation certificate for the building.
(3)  If it refuses the application after making such a request but before receiving a final fire safety report, the certifying authority must cause notice of the refusal to be given to the Fire Commissioner.
(4)  Unless it has received a notice referred to in subclause (3), the Fire Commissioner must furnish the certifying authority with a final fire safety report for the building within 7 days after receiving a request for the report.
(5)  The certifying authority must not issue an occupation certificate for the building unless it has taken into consideration any final fire safety report for the building that has been furnished to it within the 7-day period.
(6)  In this clause:
final fire safety report for a building means a written report specifying whether or not the Fire Commissioner is satisfied:
(a)  that the building complies with the Category 2 fire safety provisions, and
(b)  that the fire hydrants in the fire hydrant system will be accessible for use by New South Wales Fire Brigades, and
(c)  that the couplings in the fire hydrant system will be compatible with those of the fire appliances and equipment used by New South Wales Fire Brigades.
153   Fire safety certificates: section 109H
(cf clause 79N of EP&A Regulation 1994)
(1)  In the case of a final occupation certificate to authorise a person:
(a)  to commence occupation or use of a new building, or
(b)  to commence a change of building use for an existing building,
a certifying authority must be satisfied that a final fire safety certificate has been issued for the building.
(1A)  If the need for the final occupation certificate arises solely from fire link conversion, the final fire safety certificate referred to in subclause (1) need only deal with the new fire alarm communication link.
(2)  In the case of an interim occupation certificate to authorise a person:
(a)  to commence occupation or use of a partially completed new building, or
(b)  to commence a change of building use for part of an existing building,
a certifying authority must be satisfied that a final fire safety certificate or an interim fire safety certificate has been issued for the relevant part of the building.
(3)  This clause does not apply to a class 1a or class 10 building within the meaning of clause 167.
(4)  In this clause:
interim fire safety certificate has the same meaning as it has in Part 9.
final fire safety certificate has the same meaning as it has in Part 9.
new building has the same meaning as it has in section 109H of the Act.
154   Health and safety: section 109H
(cf clause 79O of EP&A Regulation 1994)
(1)  In the case of an interim occupation certificate to authorise a person:
(a)  to commence occupation or use of a partially completed new building, or
(b)  to commence a change of building use for part of an existing building,
a certifying authority must be satisfied that the building will not constitute a hazard to the health or safety of the occupants of the building.
(2)  In this clause, new building has the same meaning as it has in section 109H of the Act.
154A   Special requirements for occupation certificates for residential flat development
(1)  This clause applies to residential flat development for which the development application was required to be accompanied by a design verification from a qualified designer under clause 50 (1A).
(2)  A certifying authority must not issue an occupation certificate to authorise a person to commence occupation or use of residential flat development unless the certifying authority has received a design verification from a qualified designer, being a statement in which the qualified designer verifies that the residential flat development achieves the design quality of the development as shown in the plans and specifications in respect of which the construction certificate was issued, having regard to the design quality principles set out in Part 2 of State Environmental Planning Policy No 65—Design Quality of Residential Flat Development.
154B   Fulfilment of BASIX commitments
(1)  This clause applies to a BASIX affected building in respect of which a relevant BASIX certificate requires a certifying authority to monitor fulfilment of any of the commitments listed in the certificate.
(2)  A certifying authority must not issue a final occupation certificate for a BASIX affected building to which this clause applies unless it is satisfied that each of the commitments whose fulfilment it is required to monitor has been fulfilled.
(3)  For the purpose of satisfying itself as to the fulfilment of any such commitment, a certifying authority may rely on the advice of any properly qualified person.
155   Form of occupation certificate
(cf clause 79P of EP&A Regulation 1994)
(1)  An occupation certificate must contain the following information:
(a)  the identity of the certifying authority by which it is granted,
(b)  if the certifying authority is an accredited certifier:
(i)  his or her accreditation number, and
(ii)  the name of the accreditation body by which he or she is accredited,
(c)  the date of the certificate,
(d)  indicate the type of certificate being issued (that is, interim or final),
(e)  a statement to the effect that:
(i)  the health and safety of the occupants of the building have been taken into consideration where an interim occupation certificate is being issued, and
(ii)  a current development consent or complying development certificate is in force for the building, and
(iii)  if any building work has been carried out, a current construction certificate (or complying development certificate) has been issued with respect to the plans and specifications for the building, and
(iv)  the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia, and
(v)  a fire safety certificate has been issued for the building, and
(vi)  a report from the Fire Commissioner has been considered (if required).
(2)  Except as provided by subclause (3), the certificate must be accompanied by a fire safety certificate and fire safety schedule for the building.
(3)  If the need for the occupation certificate arises solely from fire link conversion, the certificate need only be accompanied by a fire safety certificate of the kind referred to in section 153 (1A) and the relevant fire link conversion schedule or fire safety schedule issued under clause 168A.
156   Occupation and use of new buildings: section 109M (2)
(cf clause 79Q of EP&A Regulation 1994)
(1)  For the purposes of section 109M (2) (c) of the Act, the fact that a building is a class 1a or class 10 building, the construction certificate or complying development certificate for which was issued before the commencement of Schedule 2.1 [32] to the Environmental Planning and Assessment Amendment (Quality of Construction) Act 2003 is a prescribed circumstance.
(2)  A person who is prescribed for the purposes of section 116G of the Act (as referred to in section 116B (a) of the Act) in relation to Crown building work involving the erection of a new building is prescribed for the purposes of section 109M (2) (d) of the Act in relation to that building.
Note.
 Section 109M of the Act prohibits the occupation or use of a new building unless an occupation certificate has been issued for the building.
Section 109M (2) (c) provides for the disapplication of that section in circumstances prescribed by the regulations. Subclause (1) of this clause prescribes such circumstances.
Section 109M (2) (d) provides for the disapplication of that section in the case of buildings erected by or on behalf of the Crown or by or on behalf of prescribed persons. Subclause (2) of this clause prescribes such persons.
Division 4 Subdivision certificates
157   Applications for subdivision certificates
(cf clause 79R of EP&A Regulation 1994)
(1)  An application for a subdivision certificate must contain the following information:
(a)  the name and address of the applicant,
(b)  the address, and formal particulars of title, of the land to which the application relates,
(c)  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 making of the application,
(d)  a list of the documents accompanying the application,
and, if the certifying authority so requires, must be in the form approved by that authority.
(2)  The application must be accompanied by the following documents:
(a)  a plan of subdivision,
(b)  a copy of the relevant development consent or complying development certificate,
(c)  a copy of any relevant construction certificate,
(d)  a copy of detailed subdivision engineering plans,
(e)  for a deferred commencement consent, evidence that the applicant has satisfied the consent authority on all matters of which the consent authority must be satisfied before the consent can operate,
(f)  evidence that the applicant has complied with all conditions of consent that it is required to comply with before a subdivision certificate can be issued, where relevant,
(g)  a certificate of compliance from the relevant water supply authority, where relevant,
(h)  if a subdivision is the subject of an order of the Land and Environment Court under section 40 of the Land and Environment Court Act 1979, evidence that required drainage easements have been acquired by the relevant council,
(i)  for subdivision involving subdivision work, evidence that:
(i)  the work has been completed, or
(ii)  agreement has been reached with the relevant consent authority as to payment of the cost of the work and as to the time for carrying out the work, or
(iii)  agreement has been reached with the relevant consent authority as to security to be given to the consent authority with respect to the completion of the work.
Note.
 See section 109O of the Act and clause 161 which provide that a requirement for a consent authority to be satisfied as to certain matters may be met if a certifying authority is satisfied as to those matters.
(3)  The application must be delivered by hand, sent by post or transmitted electronically to the principal office of the certifying authority, but may not be sent by facsimile transmission.
(4)  The plan of subdivision to which the application relates must be accompanied by a certificate on the plan in the relevant form required by the regulations in force under the Surveying Act 2002.
(5)  Immediately after it receives an application for a subdivision certificate, the certifying authority must endorse the application with the date of its receipt.
158   Certifying authority may require additional information
(cf clause 79S of EP&A Regulation 1994)
(1)  A certifying authority may require the applicant for a subdivision certificate to give the certifying authority any additional information concerning the proposed subdivision that is essential to the certifying authority’s proper consideration of the application.
(2)  Nothing in this clause affects the certifying authority’s duty to determine an application for a subdivision certificate.
159   Certifying authorities to supply application form for subdivision certificates
(cf clause 79T of EP&A Regulation 1994)
If a certifying authority requires an application for a subdivision certificate to be in a particular form, it must provide any person intending to make such an application with blank copies of that form.
160   Procedure for determining application for subdivision certificate
(cf clause 79U of EP&A Regulation 1994)
(1)  The determination of an application for a subdivision certificate must be in writing and must contain the following information:
(a)  the date on which the application was determined,
(b)  whether the application has been determined:
(i)  by approval, or
(ii)  by refusal,
(c)  if the application has been determined by refusal:
(i)  the reasons for the refusal, and
(ii)  if the certifying authority is a consent authority, of the applicant’s right of appeal under the Act against the refusal.
(2)  The certifying authority must notify the consent authority and the council of the determination by forwarding the following documents to the council within 2 days after the date of the determination:
(a)  a copy of the determination,
(b)  copies of any documents that were lodged with the application for the certificate,
(c)  if a subdivision certificate was issued, a copy of the endorsed plan of subdivision.
Note.
 The form of the subdivision certificate is regulated under the Conveyancing Act 1919.
160A   Prescribed persons: subdivision certificates
The following persons are prescribed for the purposes of section 109D (1) (d) (iii) of the Act:
(a)  Newcastle Port Corporation,
(b)  Port Kembla Port Corporation,
(c)  Sydney Ports Corporation.
Division 5 General
161   Certifying authorities may be satisfied as to certain matters: section 109O
(cf clause 79V of EP&A Regulation 1994)
(1)  This clause applies to the following matters:
(a)  any matter that relates to the form or content of the plans and specifications for the following kind of work to be carried out in connection with the erection of a building or the subdivision of land:
(i)  earthwork,
(ii)  road work, including road pavement and road finishing,
(iii)  stormwater drainage work,
(iv)  landscaping work,
(v)  erosion and sedimentation control work,
(vi)  excavation work,
(vii)  mechanical work,
(viii)  structural work,
(ix)  hydraulic work,
(x)  work associated with driveways and parking bays, including road pavement and road finishing,
(b)  any matter that relates to the external finish of a building.
(2)  Any requirement of the conditions of a development consent that a consent authority or council is to be satisfied as to a matter to which this clause applies is taken to have been complied with if a certifying authority is satisfied as to that matter.
162   Notice of replacement of principal certifying authority
(1)  A principal certifying authority appointed to replace another principal certifying authority must ensure that notice of the appointment and of the approval of that appointment is given to the consent authority (and, if the consent authority is not the council, to the council) within 2 days of the appointment.
(2)  Nothing in this clause requires any notice to be given to a council that approved the new appointment.
162A   Critical stage inspections required by section 109E (3) (d)
(1)  For the purposes of section 109E (3) (d) of the Act, the occasions on which building work must be inspected are as set out in this clause.
Note.
 These inspections are the critical stage inspections.
(2)  Except as provided by subclause (3), the critical stage inspections may be carried out by the principal certifying authority or, if the principal certifying authority agrees, by another certifying authority.
(3)  The last critical stage inspection required to be carried out for the class of building concerned must be carried out by the principal certifying authority.
(4)  In the case of a class 1 or 10 building, the occasions on which building work for which a principal certifying authority is first appointed on or after 1 July 2004 must be inspected are:
(a)  at the commencement of the building work, and
(b)  after excavation for, and prior to the placement of, any footings, and
(c)  prior to pouring any in-situ reinforced concrete building element, and
(d)  prior to covering of the framework for any floor, wall, roof or other building element, and
(e)  prior to covering waterproofing in any wet areas, and
(f)  prior to covering any stormwater drainage connections, and
(g)  after the building work has been completed and prior to any occupation certificate being issued in relation to the building.
(4A)  However, in the case of a class 1 or 10 building, an inspection on an occasion described in subclause (4) (a)–(f) that occurs before 1 July 2005 is not prescribed for the purposes of section 109E (3) (d) of the Act if:
(a)  the inspection is carried out by a person considered by the principal certifying authority to be suitably qualified to carry out the inspection (but who is not necessarily an accredited certifier) and employed, or nominated for the purpose of carrying out the inspection, by the principal certifying authority, and
(b)  the person would not be disqualified by section 109ZG of the Act (except by subsection (1) (d) or (1A) of that section) from issuing a Part 4A certificate in relation to any aspect of the development concerned.
(c)  the person makes a record of each inspection carried out by him or her, and provides a copy of that record to the principal certifying authority, as required by clause 162B for a critical stage inspection or any other inspection required by the principal certifying authority.
(5)  In the case of a class 2, 3 or 4 building, the occasions on which building work must be inspected are:
(a)  at the commencement of the building work, and
(b)  prior to covering of waterproofing in any wet areas, for a minimum of 10% of rooms with wet areas within a building, and
(c)  prior to covering any stormwater drainage connections, and
(d)  after the building work has been completed and prior to any occupation certificate being issued in relation to the building.
(6)  In the case of a class 5, 6, 7, 8 or 9 building, the occasions on which building work for which a principal certifying authority is first appointed on or after 1 July 2004 must be inspected are:
(a)  at the commencement of the building work, and
(b)  prior to covering any stormwater drainage connections, and
(c)  after the building work has been completed and prior to any occupation certificate being issued in relation to the building.
(7)  Any inspection required by this clause to be carried out at the commencement of building work may be carried out at the same time as the earlier of the next occasion prescribed by subclause (4) (b), (5) (b) or (6) (b) for an inspection of a building of the class concerned or the next inspection (if any) required by the principal certifying authority under section 109E (3) (d) of the Act, but only if the principal certifying authority agrees.
(8)  This clause does not prescribe any occasion on which a manufactured home or dwelling built off the site in sections and transported to the site for assembly is required to be inspected.
162B   Record of inspections conducted under section 109E (3)
(1)  A principal certifying authority and each other certifying authority must make a record of each critical stage inspection and any other inspection carried out because it was required by the principal certifying authority under section 109E (3) (d) of the Act carried out by the principal certifying authority or other certifying authority.
(2)  Any certifying authority who is required to make such a record but is not the principal certifying authority for the work concerned must forthwith provide a copy of the record to the principal certifying authority for the work.
Note.
 Copies of these records must be kept for at least 15 years (see clause 205).
(3)  Each record of an inspection required by this clause must be made as soon as practicable after the inspection is carried out.
(4)  The record must include details of:
(a)  the registered number of the development application and of the construction certificate or complying development certificate, and
(b)  the address of the property at which the inspection was carried out, and
(c)  the type of inspection, and
(d)  the date on which it was carried out, and
(e)  the name and accreditation number of the certifying authority by whom the inspection was carried out, and
(f)  whether or not the inspection was satisfactory in the opinion of the certifying authority who carried it out.
162C   Progress inspection unavoidably missed
(1)  If the circumstances described in subclause (2) apply:
(a)  an inspection, other than a final inspection, that would be prescribed for the purposes of section 109E (3) (d) of the Act in the absence of this clause, is not prescribed for the purposes of that paragraph, and
(b)  an inspection that is not prescribed for the purposes of that paragraph, but is required to be carried out by the principal certifying authority under that paragraph, need not be carried out.
(2)  The circumstances are:
(a)  the inspection was missed because of circumstances that the principal certifying authority considers were unavoidable, and
(b)  the principal certifying authority is satisfied that the work that would have been the subject of the missed inspection was satisfactory, and
(c)  the principal certifying authority, as soon as practicable after becoming aware of the circumstances that caused the inspection to be missed, makes a record in accordance with subclause (3).
(3)  The record of a missed inspection must include the following:
(a)  a description of the development to which the record relates and of the class of the building concerned,
(b)  the address and land title particulars (such as the Lot and DP numbers) of the property concerned,
(c)  the registered number of the development consent and the construction certificate or of the complying development certificate,
(d)  the name and accreditation number of the principal certifying authority,
(e)  the name, address and telephone number of the principal contractor or owner builder and, if that person is required to be the holder of a licence or permit, the number of that licence or permit,
(f)  particulars of the inspection that was missed and of the circumstances that the principal certifying authority considers were unavoidable that caused it to be missed,
(g)  a statement that the principal certifying authority is satisfied that the work that would have been the subject of the missed inspection was satisfactory,
(h)  the documentary evidence that was relied on to satisfy the principal certifying authority that the work that would have been the subject of the missed inspection was satisfactory, including (but not limited to) documentary evidence of a kind referred to in Part A2, clause A2.2, of the Building Code of Australia.
(4)  As soon as practicable after a person who is not the principal certifying authority becomes aware that an inspection described in subclause (1) that was required to be carried out by him or her has been missed, he or she must inform the principal certifying authority of that fact and of the circumstances causing the inspection to be missed.
(5)  As soon as practicable after becoming aware that an inspection, other than a final inspection, has been missed, the principal certifying authority must notify that fact to:
(a)  the person by whom the principal certifying authority was appointed, and
(b)  in the case of work for which a principal contractor is required to be appointed, the principal contractor or, in the case of work being done by an owner builder, the owner builder,
and must send a copy of the record made under this clause to the accreditation body that accredited, and the person who appointed, the principal certifying authority.
(6)  In this clause, final inspection means an inspection described in clause 162A (4) (g), (5) (d) or (6) (c).
163   Notice to allow inspections
To allow a principal certifying authority or another certifying authority time to carry out critical stage inspections or any other inspections required by the principal certifying authority, the principal contractor for a building site, or the owner-builder, must notify the principal certifying authority at least 48 hours before each required inspection needs to be carried out.
164   No need for duplicate notices
(cf clause 79Y of EP&A Regulation 1994)
Nothing in this Part requires a certifying authority to give a copy of a document to itself just because it is also a consent authority or council or to give more than one copy of a document to any other person just because that other person is both a consent authority and a council.
164A   BASIX certificates
(1)  The Director-General may issue certificates (BASIX certificates) in relation to the sustainability of any proposed development that involves the erection of a building or a change of building use.
(2)  Without limiting subclause (1), a BASIX certificate may be issued by means of a computerised system, as approved from time to time by the Director-General, being a system to which members of the public are given on-line access, whether over the internet or otherwise.
(3)  A BASIX certificate applies only to a single dwelling, accordingly any provision of this Regulation that requires a BASIX certificate for development involving more than one dwelling is taken to require separate BASIX certificates for each of the dwellings concerned.
(4)  A BASIX certificate must contain the following:
(a)  a description of the proposed development, corresponding in all relevant respects with the description contained in:
(i)  the relevant application, and
(ii)  any relevant accompanying documents,
(b)  a detailed list of the commitments that the applicant has made as to the manner in which the development will be carried out (being commitments as to the measures, such as design and fit-out, that the applicant proposes to implement in order to promote the sustainability of the development),
(c)  a statement to the effect that the proposed development will meet the Government’s requirements for sustainability if the applicant’s commitments are fulfilled.
(5)  In this clause:
accompanying document means any document required to accompany an application pursuant to clause 2, 4 or 6 of Schedule 1.
application means:
(a)  a development application, application for a complying development certificate or application for a construction certificate, or
(b)  an application for modification of a development consent, complying development certificate or construction certificate.
sustainability, in relation to a dwelling, means the capacity of the dwelling:
(a)  to reduce consumption of mains-supplied potable water, and
(b)  to reduce emissions of greenhouse gases, and
(c)  to perform in a thermally efficient manner.
Part 9 Fire safety and matters concerning the Building Code of Australia
Division 1 Preliminary
165   Definitions
(cf clause 80 of EP&A Regulation 1994)
In this Part:
annual fire safety statement means a statement referred to in clause 175.
critical fire safety measure means a fire safety measure that is identified in a fire safety schedule or fire link conversion schedule as a critical fire safety measure, being a measure that is of such a nature, or is implemented in such an environment or in such circumstances, that the measure requires periodic assessment and certification at intervals of less than 12 months.
essential fire safety measure, in relation to a building, means a fire safety measure that is included:
(a)  in the fire safety schedule for the building, or
(b)  in the essential services (within the meaning of Ordinance No 70 under the Local Government Act 1919) attached to an approval or order referred to in Part 59 of that Ordinance, being an approval or order that was in force immediately before 1 July 1993, or
(c)  in the essential services (within the meaning of the Local Government (Approvals) Regulation 1993) attached to an approval referred to in clause 22 of that Regulation, being the latest such approval granted during the period from 1 July 1993 to 30 June 1997, or
(d)  in the essential services (within the meaning of the Local Government (Orders) Regulation 1993) attached to an order referred to in clause 6 (1) of that Regulation, being the latest such order given during the period from 1 July 1993 to 30 June 1997.
final fire safety certificate means a certificate referred to in clause 170.
fire exit, in relation to a building, means any exit to the building that has been provided in compliance with any requirement imposed by or under the Act or this Regulation or by or under any other law, whether or not that law is currently in force.
fire safety certificate means an interim fire safety certificate or a final fire safety certificate.
fire safety measure means any measure (including any item of equipment, form of construction or fire safety strategy) that is, or is proposed to be, implemented in a building to ensure the safety of persons using the building in the event of fire.
fire safety order means an order of the kind referred to in item 6 of the Table to section 121B of the Act and includes, if an order is subsequently made under section 121R of the Act, an order under that section.
fire safety statement means an annual fire safety statement or a supplementary fire safety statement.
fire-isolated, when used in connection with the words “stairway, passageway or ramp”, means a fire-isolated stairway, fire-isolated passageway or fire-isolated ramp, as the case may be, within the meaning of the Building Code of Australia.
interim fire safety certificate means a certificate referred to in clause 173.
statutory fire safety measure means a fire safety measure of a kind referred to in the Table to clause 166.
supplementary fire safety statement means a statement referred to in clause 178.
166   Statutory fire safety measures
(cf clause 80A of EP&A Regulation 1994)
The fire safety measures listed in the Table to this clause are statutory fire safety measures for the purposes of this Part.
Table
Access panels, doors and hoppers to fire-resisting shafts
Automatic fail-safe devices
Automatic fire detection and alarm systems
Automatic fire suppression systems
Emergency lifts
Emergency lighting
Emergency warning and intercommunication systems
Exit signs
Fire control centres and rooms
Fire dampers
Fire doors
Fire hydrant systems
Fire seals protecting openings in fire-resisting components of the building
Fire shutters
Fire windows
Hose reel systems
Lightweight construction
Mechanical air handling systems
Perimeter vehicle access for emergency vehicles
Portable fire extinguishers
Safety curtains in proscenium openings
Smoke and heat vents
Smoke dampers
Smoke detectors and heat detectors
Smoke doors
Solid core doors
Standby power systems
Wall-wetting sprinkler and drencher systems
Warning and operational signs
167   Application of Part
(cf clause 80B of EP&A Regulation 1994)
(1)  This Part applies to all buildings other than class 1a and class 10 buildings.
(2)  In this clause, a reference to a class 1a or class 10 building:
(a)  in the case of the erection of a new building, is a reference to a building that will be a class 1a or class 10 building when completed, and
(b)  in the case of the rebuilding, alteration, enlargement or extension of an existing building, is a reference to an existing class 1a or class 10 building, and
(c)  in the case of the change of building use for a building, is a reference to a building that will be a class 1a or class 10 building as a result of the change of building use.
Division 2 Fire safety schedules
168   Fire safety schedules
(cf clause 80C of EP&A Regulation 1994)
(1)  When:
(a)  granting a development consent for a change of building use (other than a complying development certificate) in circumstances in which no building work is proposed by the applicant for the consent and no building work is required by the consent authority, or
(b)  issuing a complying development certificate for the erection of a building (other than a certificate that relates only to fire link conversion) or for a change of building use, or
(c)  issuing a construction certificate for proposed building work (other than a certificate that relates only to fire link conversion), or
(d)  giving a fire safety order in relation to building premises,
the person doing so must issue a schedule (a fire safety schedule) specifying the fire safety measures (both current and proposed) that should be implemented in the building premises.
(2)  In the case of a fire safety order in respect of which a further order is made under section 121R of the Act, the fire safety schedule is to be issued when the further order is given.
(3)  A fire safety schedule:
(a)  must deal with the whole of the building, not merely the part of the building to which the development consent, complying development certificate, construction certificate or fire safety order relates, and
(b)  must include:
(i)  such of the fire safety measures currently implemented in the building premises, and
(ii)  such of the fire safety measures proposed or required to be implemented in the building premises,
as are statutory fire safety measures, and
(c)  must distinguish between:
(i)  the fire safety measures currently implemented in the building premises, and
(ii)  the fire safety measures proposed or required to be implemented in the building premises, and
(d)  must identify each measure that is a critical fire safety measure and the intervals (being intervals of less than 12 months) at which supplementary fire safety statements must be given to the council in respect of each such measure, and
(e)  must specify the minimum standard of performance for each fire safety measure included in the schedule.
(4)  A copy of the fire safety schedule must be attached to (and is taken to form part of) the relevant development consent, complying development certificate, construction certificate or fire safety order and for the purposes of an appeal forms part of the development consent or construction certificate.
(5)  An earlier fire safety schedule is superseded by a later fire safety schedule, and ceases to have effect when the later fire safety schedule is issued.
168A   Conversion of fire alarm communication links
(1)  This clause applies to a complying development certificate or a construction certificate that relates only to fire link conversion.
(2)  A person issuing such a certificate must also issue:
(a)  if there is a current fire safety schedule for the building concerned, a schedule (a fire link conversion schedule) for the new fire alarm communication link, or
(b)  in any other case, a fire safety schedule dealing only with the new fire alarm communication link.
(3)  A fire link conversion schedule or fire safety schedule issued under this clause:
(a)  must specify the minimum standard of performance for the new fire alarm communication link, and
(b)  if the new fire alarm communication link is a critical fire safety measure, must identify the link as such and specify the intervals (being intervals of less than 12 months) at which supplementary fire safety statements must be given to the council.
(4)  If a fire link conversion schedule is issued, a copy of the schedule must be attached to the current fire safety schedule for the building concerned and the copy is taken, for the purposes of this Regulation, to form part of the fire safety schedule.
Note.
 This means that when the current fire safety schedule is updated, the updated fire safety schedule must incorporate not only the current fire safety schedule but also the fire link conversion schedule.
(5)  Clause 168 (4) applies to a fire link conversion schedule and a fire safety schedule issued under this clause.
Division 3 Fire safety orders
169   Fire safety schedules and fire safety certificates
(cf clause 80D of EP&A Regulation 1994)
(1)  As soon as practicable after making a fire safety order, a person must cause copies of the fire safety schedule required by clause 168 to be given to the council and to the Fire Commissioner.
(2)  A person to whom a fire safety order is given in relation to any building must, within the time specified in the order, cause copies of a final fire safety certificate for the building (being a certificate issued after the requirements of the order have been complied with) to be given to the person by whom the order was given (and, if that person was not the council, to the council).
Note.
 See also clause 172 which requires a copy of the ensuing fire safety certificate to be given to the Fire Commissioner.
Division 4 Fire safety certificates
170   What is a final fire safety certificate?
(cf clause 80E of EP&A Regulation 1994)
A final fire safety certificate is a certificate issued by or on behalf of the owner of a building to the effect that each essential fire safety measure specified in the current fire safety schedule for the building to which the certificate relates:
(a)  has been assessed by a properly qualified person, and
(b)  was found, when it was assessed, to be capable of performing to at least the standard required by the current fire safety schedule for the building for which the certificate is issued.
Note.
 A final fire safety certificate must be provided before a final occupation certificate can be issued for a building under clause 153 (1), and must also be provided if a fire safety order is made in relation to building premises.
Under clause 153 (1A), a final fire safety certificate that relates solely to a final occupation certificate for fire link conversion need only deal with the new fire alarm communication link and not with other essential fire safety measures.
171   Issue of final fire safety certificates
(1)  The assessment of essential fire safety measures must have been carried out within the period of 3 months prior to the date on which a final fire safety certificate is issued.
(2)  The choice of person to carry out an assessment is up to the owner of the building.
(3)  A person who carries out an assessment:
(a)  must inspect and verify the performance of each fire safety measure being assessed, and
(b)  must test the operation of each new item of equipment installed in the building premises that is included in the current fire safety schedule for the building.
(4)  A final fire safety certificate issued in relation to work that has been authorised or required by a development consent, construction certificate or fire safety order need not deal with any essential fire safety measure the subject of some other final fire safety certificate or fire safety statement issued within the previous 6 months, unless the person by whom the development consent, construction certificate or fire safety order is issued or given otherwise determines.
(5)  The person by whom the development consent, construction certificate or fire safety order is issued or given may make such a determination only if:
(a)  the person is of the opinion that the measure will be affected by the work, and
(b)  the person has specified in the fire safety schedule attached to the development consent, construction certificate or fire safety order that the final fire safety certificate issued in relation to the work must deal with that measure.
172   Final fire safety certificate to be given to Fire Commissioner and prominently displayed in building
(1)  As soon as practicable after a final fire safety certificate is issued, the owner of the building to which it relates:
(a)  must cause a copy of the certificate (together with a copy of the current fire safety schedule) to be given to the Fire Commissioner, and
(b)  must cause a further copy of the certificate (together with a copy of the current fire safety schedule) to be prominently displayed in the building.
(2)  Subclause (1) (b) ceases to apply to a final fire safety certificate only when every essential fire safety measure with which it deals has become the subject of a later fire safety certificate or fire safety statement.
173   What is an interim fire safety certificate?
(cf clause 80F of EP&A Regulation 1994)
(1)  An interim fire safety certificate is a certificate issued by the owner of a building to the effect that each essential fire safety measure specified in the current fire safety schedule for the part of the building to which the certificate relates:
(a)  has been assessed by a properly qualified person, and
(b)  was found, when it was assessed, to be capable of performing to at least the standard required by the current fire safety schedule for the building for which the certificate is issued.
(2)  The provisions of clause 171 and 172 apply to an interim fire safety certificate in the same way as they apply to a final fire safety certificate.
Note.
 An interim fire safety certificate (or a final fire safety certificate) must be provided before an interim occupation certificate can be issued for a building under clause 153 (2).
174   Form of fire safety certificates
(cf clause 80G of EP&A Regulation 1994)
(1)  A fire safety certificate for a building or part of a building must contain the following information:
(a)  the name and address of the owner of the building or part,
(b)  a description of the building or part (including its address),
(c)  a list identifying each essential fire safety measure in the building or part, together with the minimum standard of performance specified in the relevant fire safety schedule in relation to each such measure,
(d)  the date or dates on which the essential fire safety measures were assessed,
(e)  the type of certificate being issued (that is, final or interim),
(f)  a statement to the effect referred to in clause 170 (for a final certificate) or clause 173 (for an interim certificate),
(g)  the date on which the certificate is issued.
(2)  A fire safety certificate for a building or part of a building must be accompanied by a fire safety schedule for the building or part.
Division 5 Fire safety statements
175   What is an annual fire safety statement?
(cf clause 80GA of EP&A Regulation 1994)
An annual fire safety statement is a statement issued by or on behalf of the owner of a building to the effect that:
(a)  each essential fire safety measure specified in the statement has been assessed by a properly qualified person and was found, when it was assessed, to be capable of performing:
(i)  in the case of an essential fire safety measure applicable by virtue of a fire safety schedule, to a standard no less than that specified in the schedule, or
(ii)  in the case of an essential fire safety measure applicable otherwise than by virtue of a fire safety schedule, to a standard no less than that to which the measure was originally designed and implemented, and
(b)  the building has been inspected by a properly qualified person and was found, when it was inspected, to be in a condition that did not disclose any grounds for a prosecution under Division 7.
176   Issue of annual fire safety statements
(1)  The assessment and inspection of an essential fire safety measure or building must have been carried out within the period of 3 months prior to the date on which the annual fire safety statement is issued.
(2)  The choice of person to carry out an assessment or inspection is up to the owner of the building.
(3)  The person who carries out an assessment must inspect and verify the performance of each fire safety measure being assessed.
177   Annual fire safety statement to be given to council and Fire Commissioner and prominently displayed in building
(cf clause 80GB of EP&A Regulation 1994)
(1)  Each year, the owner of a building to which an essential fire safety measure is applicable must cause the council to be given an annual fire safety statement for the building.
(2)  An annual fire safety statement for a building:
(a)  must deal with each essential fire safety measure in the building premises, and
(b)  must be given:
(i)  within 12 months after the date on which an annual fire safety statement was previously given, or
(ii)  if a fire safety certificate has been issued within the previous 12 months, within 12 months after the fire safety certificate was issued,
whichever is the later.
(2A)  Failure to give an annual fire safety statement to the council within the time prescribed by subclause (2) (b) constitutes a separate offence for each week beyond the expiry of that time for which the failure continues.
(3)  As soon as practicable after an annual fire safety statement is issued, the owner of the building to which it relates:
(a)  must cause a copy of the statement (together with a copy of the current fire safety schedule) to be given to the Fire Commissioner, and
(b)  must cause a further copy of the statement (together with a copy of the current fire safety schedule) to be prominently displayed in the building.
(4)  Subclause (3) (b) ceases to apply to an annual fire safety statement only when every essential fire safety measure with which it deals has become the subject of a later fire safety certificate or fire safety statement.
178   What is a supplementary fire safety statement?
(cf clause 80GC of EP&A Regulation 1994)
A supplementary fire safety statement is a statement issued by the owner of a building to the effect that each critical fire safety measure specified in the statement has been assessed by a properly qualified person and was found, when it was assessed, to be capable of performing to at least the standard required by the current fire safety schedule for the building for which the statement is issued.
179   Issue of supplementary fire safety statements
(1)  The assessment of a critical fire safety measure must have been carried out within the period of one month prior to the date on which the supplementary fire safety statement is issued.
(2)  The choice of person to carry out the assessment is up to the owner of the building.
(3)  The person who carries out the assessment must inspect and verify the performance of each fire safety measure being assessed.
180   Supplementary fire safety statement to be given to council and Fire Commissioner and prominently displayed in building
(cf clause 80GD of EP&A Regulation 1994)
(1)  The owner of building premises in which a critical fire safety measure is implemented must cause the council to be given periodic supplementary fire safety statements for that measure.
(2)  A supplementary fire safety statement for a critical fire safety measure must be given at such intervals (being intervals of less than 12 months) as is specified in respect of that measure in the current fire safety schedule for the building.
(2A)  Failure to give a supplementary fire safety statement to the council within the time required by the current fire safety schedule for the building constitutes a separate offence for each week beyond the expiry of that time for which the failure continues.
(3)  As soon as practicable after a supplementary fire safety statement is issued, the owner of the building to which it relates:
(a)  must cause a copy of the statement (together with a copy of the current fire safety schedule) to be given to the Fire Commissioner, and
(b)  must cause a further copy of the statement (together with a copy of the current fire safety schedule) to be prominently displayed in the building.
(4)  Subclause (3) (b) ceases to apply to a supplementary fire safety statement only when every critical fire safety measure with which it deals has become the subject of a later fire safety certificate or fire safety statement.
181   Form of fire safety statements
(cf clause 80GE of EP&A Regulation 1994)
(1)  A fire safety statement for a building or part of a building must contain the following information:
(a)  the name and address of the owner of the building or part,
(b)  a description of the building or part (including its address),
(c)  a list identifying:
(i)  each essential fire safety measure in the building or part (for an annual statement), or
(ii)  each critical fire safety measure in the building or part (for a supplementary statement),
together with the minimum standard of performance specified in the relevant fire safety schedule in relation to each such measure,
(d)  the date or dates on which the essential fire safety measures were assessed,
(e)  the date on which the building or part was inspected,
(f)  the type of statement being issued (that is, annual or supplementary),
(g)  a statement to the effect referred to in clause 175 (for an annual statement) or clause 178 (for a supplementary statement),
(h)  the date on which the statement is issued.
(2)  A fire safety statement for a building or part of a building must be accompanied by a fire safety schedule for the building or part.
Division 6 Fire safety maintenance
182   Essential fire safety measures to be maintained
(cf clause 80GF of EP&A Regulation 1994)
(1)  The owner of a building to which an essential fire safety measure is applicable must not fail to maintain each essential fire safety measure in the building premises:
(a)  in the case of an essential fire safety measure applicable by virtue of a fire safety schedule, to a standard no less than that specified in the schedule, or
(b)  in the case of an essential fire safety measure applicable otherwise than by virtue of a fire safety schedule, to a standard no less than that to which the measure was originally designed and implemented.
(2)  As soon as practicable after receiving a request in that regard from the owner of a building to which an essential fire safety measure is applicable otherwise than by virtue of a fire safety schedule, the council must provide the owner with a schedule of the essential fire safety measures for the building premises.
Division 7 Miscellaneous fire safety offences
183   Fire safety notices
(cf clause 80GG of EP&A Regulation 1994)
(1)  If:
(a)  a building’s fire exit includes any fire-isolated stairway, passageway or ramp, and
(b)  a notice in the form at the end of this clause is not at all times displayed in a conspicuous position adjacent to a doorway providing access to, but not within, that stairway, passageway or ramp,
the occupier of the part of the premises adjacent to the stairway, passageway or ramp is guilty of an offence.
Maximum penalty: 100 penalty units.
(2)  The words “OFFENCE RELATING TO FIRE EXITS” in the notice referred to in subclause (1) (b) must be in letters at least 8 millimetres high, and the remaining words must be in letters at least 2.5 millimetres high.
(3)  A notice in the form prescribed under the Local Government Act 1919 or the Local Government Act 1993 for the purposes of a provision corresponding to this clause is taken to comply with the requirements of this clause.
OFFENCE RELATING TO FIRE EXITS
It is an offence under the Environmental Planning and Assessment Act 1979:
(a)  to place anything in or near this fire exit that may obstruct persons moving to and from the exit, or
(b)  to interfere with or obstruct the operation of any fire doors, or
(c)  to remove, damage or otherwise interfere with this notice.
184   Fire exits
(cf clause 80GH of EP&A Regulation 1994)
A person must not:
(a)  place anything that may impede the free passage of persons:
(i)  in a stairway, passageway or ramp serving as or forming part of a building’s fire exit, or
(ii)  in a path of travel leading to a building’s fire exit, or
(b)  interfere with, or cause obstruction or impediment to, the operation of any fire doors providing access to a stairway, passageway or ramp serving as or forming part of a building’s fire exit, or
(c)  remove, damage or otherwise interfere with a notice referred to in clause 183.
Maximum penalty: 100 penalty units.
185   Doors relating to fire exits
(cf clause 80GI of EP&A Regulation 1994)
A person must not:
(a)  without lawful excuse, interfere with, or cause obstruction or impediment to, the operation of any door that:
(i)  serves as or forms part of a building’s fire exit, or
(ii)  is situated in a path of travel leading to a building’s fire exit, or
(b)  without lawful excuse, obstruct any doorway that:
(i)  serves as or forms part of a building’s fire exit, or
(ii)  is situated in a path of travel leading to a building’s fire exit.
Maximum penalty: 100 penalty units.
186   Paths of travel to fire exits
(cf clause 80GJ of EP&A Regulation 1994)
The owner of a building:
(a)  must ensure that:
(i)  any stairway, passageway or ramp serving as or forming part of a building’s fire exit, and
(ii)  any path of travel leading to a building’s fire exit,
is kept clear of anything that may impede the free passage of persons, and
(b)  must ensure that the operation of any door that:
(i)  serves as or forms part of a building’s fire exit, or
(ii)  is situated in a path of travel leading to a building’s fire exit,
is not interfered with, or otherwise obstructed or impeded, except with lawful excuse, and
(c)  must ensure that any notice required by clause 183 to be displayed is so displayed.
Maximum penalty: 100 penalty units.
Division 8 Miscellaneous
187   Modification and supplementation of Building Code of Australia standards
(cf clause 80H of EP&A Regulation 1994)
(1)  This clause applies to development the subject of:
(a)  a development application for the change of building use of an existing building where the application does not seek any alteration, enlargement or extension of the building, or
(b)  an application for a construction certificate for building work, other than building work associated with a change of building use referred to in paragraph (a).
(2)  The applicant in relation to development to which this clause applies may lodge with the consent authority or certifying authority an objection:
(a)  that the Building Code of Australia (as applied by clause 98 or 133) does not make appropriate provision with respect to:
(i)  the building in relation to which the change of building use is sought, or
(ii)  the proposed building work, or
(b)  that compliance with any specified provision of the Building Code of Australia (as applied by clause 98 or 133) is unreasonable or unnecessary in the particular circumstances of the case.
Note.
 This clause does not authorise the making of an objection to a condition imposed on a development consent otherwise than by operation of clause 98 or 133. So if a consent authority requires the provision of specified fire safety equipment, an objection to that requirement cannot be made merely because the requirement happens to be the same as a requirement imposed by the Building Code of Australia. Nor can it be made if the consent authority requires the development to be carried out in accordance with the Building Code of Australia, as the requirement then arises not from the Building Code of Australia (as applied by clause 98 or 133) but from the Building Code of Australia (as applied by the terms of the condition).
(3)  In the case of an objection with respect to a Category 3 fire safety provision (as applied by clause 98 or 133), the objection:
(a)  must indicate that a similar objection has been made to the Fire Commissioner, and
(b)  must be accompanied by a copy of the Fire Commissioner’s determination of the objection.
(4)  An objection may not be made with respect to a Category 1 fire safety provision (as applied by clause 98 or 133) by an applicant in relation to development the subject of a development application referred to in subclause (1) (a) if the application has already been determined by the granting of development consent.
(5)  The applicant must specify the grounds of the objection and (in the case of proposed building work) must furnish the consent authority or certifying authority with a copy of the plans and specifications for the building work.
(6)  If the consent authority or certifying authority is satisfied that the objection is well founded, it may do either or both of the following:
(a)  it may exempt the development, either conditionally or unconditionally, from any specified provision of the Building Code of Australia (as applied by clause 98 or 133),
(b)  it may direct that specified requirements are to apply to the proposed building work.
(7)  A consent authority or certifying authority may not take action under this clause except with the concurrence of the Director-General.
(8)  The Director-General:
(a)  may give the consent authority or certifying authority notice that concurrence may be assumed, in relation to any particular class of objections, subject to such conditions as are specified in the notice, and
(b)  may amend any such notice by a further notice given to that consent authority or certifying authority.
(9)  Action taken in accordance with a notice referred to in subclause (8) is as valid as it would be if the consent authority or certifying authority had obtained the concurrence of the Director-General.
(10)  Concurrence is to be assumed if at least 40 days have passed since concurrence was sought and the Director-General has not, within that period, expressly refused concurrence.
(11)  Any exemption or direction given by the consent authority or certifying authority under this clause must be given subject to, and must not be inconsistent with, any conditions to which the concurrence of the Director-General is subject.
(12)  When granting development consent for development the subject of a development application referred to in subclause (1) (a), the consent authority must ensure that the terms of any condition referred to in subclause (6) (a) and any requirement referred to in subclause (6) (b):
(a)  have been included in the plans and specifications for the building work, in the case of a condition whose terms are capable of being so included, or
(b)  are included in the conditions attached to the development consent, in the case of a condition whose terms are not capable of being so included.
(13)  When issuing a construction certificate for building work the subject of an application referred to in subclause (1) (b), the certifying authority must ensure that the terms of any condition referred to in subclause (6) (a) and any requirement referred to in subclause (6) (b):
(a)  have been included in the plans and specifications for the building work, in the case of a condition whose terms are capable of being so included, or
(b)  are included in the conditions attached to the certificate, in the case of a condition whose terms are not capable of being so included.
(14)  Compliance with the requirement that the terms of a condition be included in the plans and specifications for building work is sufficiently complied with:
(a)  if the plans and specifications are redrawn so as to accord with those terms, or
(b)  if those terms are included by way of an annotation (whether by way of insertion, deletion or alteration) marked on the relevant part of those plans and specifications.
188   Exemption from fire safety standards
(cf clause 80I of EP&A Regulation 1994)
(1)  This clause applies to development the subject of:
(a)  a development application for the change of building use of an existing building where the application does not seek any alteration, enlargement or extension of the building, or
(b)  an application for a construction certificate for building work, other than building work associated with a change of building use referred to in paragraph (a).
Note.
 This clause does not authorise the making of an objection to a condition imposed on a development consent otherwise than by operation of clause 98 or 133. So if a consent authority requires the provision of specified fire safety equipment, an objection to that requirement cannot be made merely because the requirement happens to be the same as a requirement imposed by the Building Code of Australia. Nor can it be made if the consent authority requires the development to be carried out in accordance with the Building Code of Australia, as the requirement then arises not from the Building Code of Australia (as applied by clause 98 or 133) but from the Building Code of Australia (as applied by the terms of the condition).
(2)  The applicant in relation to development to which this clause applies may lodge with the Fire Commissioner an objection that compliance with any specified Category 3 fire safety provision (as applied by clause 98 or 133) is unreasonable or unnecessary in the particular circumstances of the case.
(3)  The applicant must specify the grounds of the objection and (in the case of proposed building work) must furnish the Fire Commissioner with a copy of the plans and specifications for the building work.
(4)  If the Fire Commissioner is satisfied that the objection is well founded, the Fire Commissioner may exempt the development, either conditionally or unconditionally, from any specified Category 3 fire safety provision (as applied by clause 98 or 133).
(5)  When granting development consent for development the subject of a development application referred to in subclause (1) (a), a consent authority must ensure that the terms of any condition referred to in subclause (4):
(a)  have been included in the plans and specifications for the building work, in the case of a condition whose terms are capable of being so included, or
(b)  are included in the conditions attached to the development consent, in the case of a condition whose terms are not capable of being so included.
(6)  When issuing a construction certificate for building work the subject of an application referred to in subclause (1) (b), a certifying authority must ensure that the terms of any condition referred to in subclause (4):
(a)  have been included in the plans and specifications for the building work, in the case of a condition whose terms are capable of being so included, or
(b)  are included in the conditions attached to the certificate, in the case of a condition whose terms are not capable of being so included.
(7)  Compliance with the requirement that the terms of a condition be included in the plans and specifications for building work is sufficiently complied with:
(a)  if the plans and specifications are redrawn so as to accord with those terms, or
(b)  if those terms are included by way of an annotation (whether by way of insertion, deletion or alteration) marked on the relevant part of those plans and specifications.
189   Prescribed matters for inspection by NSW Fire Brigades: section 118L (1) (b) of the Act
(cf clause 80J of EP&A Regulation 1994)
For the purposes of section 118L (1) (b) of the Act, the following provisions are prescribed:
(a)  such of the provisions of Division 2A of Part 6 of the Act as relate to compliance with a fire safety order,
(b)  such of the provisions of clauses 172 (1) (b), 177 (3) (b), 180 (3) (b) and 182 (2) as relate to the implementation, maintenance or certification of essential fire safety measures for building premises,
(c)  such of the provisions of Division 7 as relate to fire safety notices, fire exits, doors relating to fire exits and paths of travel to fire exits.
190   Offences relating to certain Crown property
(cf clause 80K of EP&A Regulation 1994)
No proceedings may be taken for an offence under this Part with respect to a building:
(a)  that is situated on a reserve within the meaning of Part 5 of the Crown Lands Act 1989, or
(b)  that is a School of Arts or Mechanics Institute,
except with the consent of the Minister given after consultation with the Minister administering the Crown Lands Act 1989.
Part 10 Accreditation bodies and accredited certifiers
Division 1 Accreditation bodies
191   Definition
In this Division, Ministerial guidelines means guidelines in force under clause 198.
192   Application for authorisation
(cf clause 81 of EP&A Regulation 1994)
(1)  A professional association may apply to the Minister to be authorised as an accreditation body with respect to any specified class of matters.
(2)  An application:
(a)  must be in writing, and
(b)  must be delivered by hand, sent by post or transmitted electronically to the offices of the Department, but may not be sent by facsimile transmission, and
(c)  must indicate the class of matters in relation to which the association seeks to be authorised, and
(d)  must address each of the matters in respect of which the Minister must be satisfied (as referred to in clause 194) before the association may be authorised as an accreditation body, and
(e)  must comply with such requirements (if any) as are contained in the Ministerial guidelines.
193   Public notice of applications
(cf clause 81A of EP&A Regulation 1994)
(1)  The Minister must ensure that an application for authorisation as an accreditation body is publicly notified in a daily newspaper circulating throughout New South Wales and, together with any accompanying information, is available for inspection during the period, and at the place or places, specified in the notice.
(2)  The notice:
(a)  must indicate where a copy of the application may be inspected or obtained, and
(b)  must indicate that any person may make submissions to the Minister with respect to the application, and
(c)  must indicate the period of time (being at least 28 days) within which any such submission must be made.
(3)  During the relevant submission period:
(a)  any person may inspect the application and any accompanying information and make extracts from or copies of them, and
(b)  any person may make written submissions to the Minister with respect to the application.
(4)  In determining an application, the Minister must have regard to any submissions duly made in response to the notice.
194   Matters to be demonstrated by proposed accreditation body
(cf clause 81B of EP&A Regulation 1994)
(1)  A professional association is not to be authorised as an accreditation body unless the Minister is satisfied that the association:
(a)  has sufficient resources and expertise to exercise the functions of an accreditation body, and
(b)  in the exercise of those functions, will comply with the requirements of the Act, this Regulation and the Ministerial guidelines,
in relation to the class of matters in respect of which it is to be authorised.
(2)  For the purposes of this clause, the Minister must have particular regard to the following functions of an accreditation body:
(a)  the annual accreditation of certifiers, including procedures for establishing that applicants for accreditation:
(i)  have the qualifications or expertise to exercise the functions of an accredited certifier, and
(ii)  are covered by the required insurance (within the meaning of section 109ZN of the Act) for the whole of the period for which the certifier is to be accredited,
(b)  the monitoring of the conduct of accredited certifiers,
(c)  the taking of disciplinary proceedings against accredited certifiers,
(d)  the implementation of the decisions of the Administrative Decisions Tribunal with respect to accredited certifiers,
(e)  the maintenance of records and the provision of information concerning accredited certifiers,
(f)  such other functions of an accreditation body as the Ministerial guidelines may specify.
195   Authorisations
(cf clause 81C of EP&A Regulation 1994)
(1)  As soon as practicable after authorising a professional association as an accreditation body, the Minister must cause notice of that fact to be published in the Gazette.
(2)  The notice must indicate the name of the association, the fact that it is authorised as an accreditation body, the class of matters in relation to which it is authorised and the terms of the authorisation or the place at which the terms of the authorisation may be inspected.
(3)  The authorisation takes effect on the date on which the notice is published in the Gazette.
196   Variation of authorisations
(cf clause 81D of EP&A Regulation 1994)
(1)  The Minister may from time to time vary the terms of an accreditation body’s authorisation.
(2)  The proposal to vary the terms of an authorisation may be made by the Minister or by the accreditation body.
(3)  Clause 193 applies to a proposal to vary the terms of an accreditation body’s authorisation (whether made by the Minister or by the accreditation body) in the same way as it applies to an application for authorisation as an accreditation body.
(4)  The terms of an accreditation body’s authorisation may not be varied unless the Minister is satisfied (having regard to the functions referred to in clause 194) that the accreditation body:
(a)  has sufficient resources and expertise to exercise the functions of an accreditation body, and
(b)  in the exercise of those functions, will comply with the requirements of the Act, this Regulation and the Ministerial guidelines,
in relation to the class of matters in respect of which the accreditation body is, or (if the variation affects that class of matters) is to be, authorised.
(5)  As soon as practicable after deciding to vary the terms of an accreditation body’s authorisation, the Minister must cause notice of that fact to be published in the Gazette.
(6)  The notice must indicate the name of the association, the fact that the terms of its authorisation have been varied and the terms of its authorisation (as so varied) or the place at which the terms of its authorisation (as so varied) may be inspected.
(7)  A variation of the terms of an accreditation body’s authorisation takes effect on the date on which the notice is published in the Gazette.
197   Withdrawal of authorisations
(cf clause 81E of EP&A Regulation 1994)
(1)  If satisfied that an accreditation body:
(a)  is in breach of its authorisation, or
(b)  does not have sufficient resources or expertise to exercise the functions of an accreditation body, or
(c)  has failed to comply with the requirements of the Act, this Regulation or the Ministerial guidelines,
the Minister may withdraw its authorisation by means of a notice published in the Gazette.
(2)  Before taking any action under this clause, the Minister:
(a)  must notify the accreditation body of the action proposed by the Minister, and
(b)  must give the accreditation body a reasonable opportunity to make submissions to the Minister with respect to the action proposed, and
(c)  must have due regard to any submissions made by the accreditation body with respect to the action proposed.
(3)  Withdrawal of an accreditation body’s authorisation takes effect on the date on which the notice is published in the Gazette.
(4)  On withdrawing an accreditation body’s authorisation, the Minister must cause a copy of the notice to be given to the accreditation body.
198   Ministerial guidelines
(cf clause 81F of EP&A Regulation 1994)
(1)  The Minister may from time to time establish guidelines for the purposes of this Part and may from time to time amend or revoke any guidelines so established.
(2)  The guidelines may deal with:
(a)  the form and content of applications made by professional associations for authorisation as accreditation bodies, and
(b)  any aspect of the exercise of an accreditation body’s functions, and
(c)  any other matter relating to accreditation bodies with respect to which the Minister considers that it is appropriate to establish guidelines,
whether generally or in relation to particular accreditation bodies or particular classes of matters.
199   Savings and transitional provisions where authorisation ceases
(cf clause 81G of EP&A Regulation 1994)
(1)  This clause applies to:
(a)  an accreditation body that ceases to exist or whose authorisation as an accreditation body is withdrawn, and
(b)  an accreditation body that ceases to be authorised in respect of a class of matters because of a variation in the terms of its authorisation,
(referred to in either case as a defunct accreditation body) but, in relation to an accreditation body that ceases to be authorised in respect of a class of matters, applies only in relation to the class of matters in respect of which the accreditation body has ceased to be authorised.
(2)  Subject to action taken under the Act or this Regulation, as applied by this clause, any accreditation granted by a defunct accreditation body continues to have effect according to its terms.
(3)  If an accreditation body becomes defunct:
(a)  the functions of the defunct accreditation body (including the commencement and maintenance of any proceedings before the Administrative Decisions Tribunal under Division 3 of Part 4B of the Act) are to be exercised by the Minister, or by such other person as the Minister may appoint to exercise those functions, and
(b)  the Act and this Regulation apply to the Minister, or to the person so appointed, in the same way as they previously applied to the accreditation body before it became defunct.
(4)  Without limiting subclause (3) (a), another accreditation body may be appointed to exercise the functions of a defunct accreditation body.
(5)  Neither the Minister, nor any person appointed to exercise the functions of a defunct accreditation body, is liable for any act or omission done or omitted to be done in good faith in the exercise of those functions.
Division 2 Registers and records
200   Accreditation bodies’ registers
(cf clause 81H of EP&A Regulation 1994)
(1)  Each accreditation body must keep a register in relation to all accredited certifiers accredited by it.
(2)  The register must contain the following particulars for each person who is, or has at any time been, accredited by the accreditation body as a certifier:
(a)  the person’s name and the address of the person’s place of business,
(a1)  a telephone number or telephone numbers for contacting the person for business purposes,
(b)  the class of matters for which the person is or has been accredited,
(c)  the date on which the person was first accredited, and the date of each occasion on which the person’s accreditation has been renewed,
(d)  the name of each insurer with whom the person has effected the required insurance within the meaning of section 109ZN of the Act, the identifying number of each relevant insurance contract and the dates between which the indemnity (other than the run-off cover) provided by the relevant insurance contract has or has had effect,
(e)  the terms of any conditions to which the person’s accreditation is or has been subject, and the dates between which any such condition has or has had effect,
(f)  in the case of a person whose accreditation is or has been suspended, the dates between which the suspension has or has had effect,
(g)  in the case of a person whose accreditation as an accredited certifier has been withdrawn or has otherwise ceased to have effect, the date on which the accreditation was withdrawn or ceased to have effect, as the case requires,
(h)  a list of the projects in connection with which the person has issued complying development certificates or Part 4A certificates, indicating:
(i)  the kinds of certificates issued by the person in relation to each such project, and
(ii)  the classification of any building involved in each such project, and
(iii)  the local government area in which each such project was carried out, and
(iv)  except in the case of a subdivision certificate, the person’s estimate of the cost of each project, and
(v)  in the case of a subdivision certificate, the number of lots that will be created by the subdivision.
(3)  An accreditation body must make its register available for inspection, free of charge, during the accreditation body’s ordinary office hours.
(4)  A copy of any extracts from the register may be made on payment of a reasonable copying charge set by the accreditation body.
(5)  An accreditation body must furnish the Director-General with copies of all entries it makes in its register.
(6)  An accredited certifier must ensure that the relevant accreditation body is notified immediately of any event or circumstance that requires any alteration to be made to the information contained in the register in relation to the certifier.
201   Other documents to be kept by accreditation bodies
(cf clause 81I of EP&A Regulation 1994)
(1)  An accreditation body must keep copies of the following documents:
(a)  all applications for accreditation under the Act,
(b)  all notices and records, and all copies of notices and records, received by it under the Act or this Regulation,
(c)  all records made by it, under the Act or under this Regulation, in relation to complaints made to it under the Act,
(d)  all reports received by it under section 109U of the Act,
(e)  all copies of documents given to it as referred to in clause 205 (4).
(2)  Subclause (1) (e) does not require an accreditation body to keep copies of any certificate, or of any ancillary application, determination, plan, specification or other document, for more than 15 years from the date on which the certificate was issued.
(3)  An accreditation body must cause a copy of any document referred to in subclause (1) to be given to the Director-General if the Director-General so requests by notice in writing served on the accreditation body.
202   Central register
(cf clause 81J of EP&A Regulation 1994)
(1)  The Director-General must cause a register to be kept in relation to all accredited certifiers (a central register).
(2)  The central register must contain the following particulars for each person who is, or has at any time been, an accredited certifier:
(a)  the person’s name and the address of the person’s place of business,
(a1)  a telephone number or telephone numbers for contacting the person for business purposes,
(b)  the class of matters for which the person is or has been accredited,
(c)  the name of the accreditation body by which the person is or has been accredited,
(d)  the date on which the person was first accredited, and the date of each occasion on which the person’s accreditation has been renewed,
(e)  the name of each insurer with whom the person has effected the required insurance within the meaning of section 109ZN of the Act, the identifying number of each relevant insurance contract and the dates between which the indemnity (other than the run-off cover) provided by the relevant insurance contract has or has had effect,
(f)  the terms of any conditions to which the person’s accreditation is or has been subject, and the dates between which any such condition has or has had effect,
(g)  in the case of a person whose accreditation is or has been suspended, the dates between which the suspension has or has had effect,
(h)  in the case of an accredited certifier whose accreditation has been withdrawn or has otherwise ceased to have effect, the date on which the accreditation was withdrawn or ceased to have effect, as the case requires.
203   Annual reports
(cf clause 81K of EP&A Regulation 1994)
(1)  As soon as practicable after 30 June, but before 31 December, in each year, an accreditation body must prepare and forward to the Minister a report of the accreditation body’s work and activities under the Act for the period of 12 months ending on 30 June in that year (the reporting year).
(2)  An accreditation body’s report must include particulars as to the following:
(a)  the number of persons accredited by the accreditation body during the reporting year,
(b)  the number of complaints against accredited certifiers made to the accreditation body during the reporting year,
(c)  the action taken by the accreditation body with respect to each such complaint, including details as to:
(i)  the number of complaints that it has dismissed, and
(ii)  the number of complaints in respect of which it has instituted proceedings in the Administrative Decisions Tribunal, and
(iii)  the number of complaints that it has dealt with otherwise than as referred to in subparagraphs (i) and (ii),
(d)  the action taken by the Administrative Decisions Tribunal with respect to each complaint in respect of which it has instituted proceedings in the Tribunal,
(e)  the number of persons whose accreditation has been suspended or withdrawn during the reporting year, including details as to:
(i)  the number of persons whose accreditation has been suspended as a consequence of action taken by the Administrative Decisions Tribunal with respect to a complaint, and
(ii)  the number of persons whose accreditation has been withdrawn as a consequence of action taken by the Administrative Decisions Tribunal with respect to a complaint, and
(iii)  the number of persons whose accreditation has been withdrawn otherwise than as a consequence of action taken by the Administrative Decisions Tribunal with respect to a complaint,
(f)  such particulars as are required by the terms of its authorisation to be included in its report.
(3)  The Minister must cause each such report to be laid before both Houses of Parliament as soon as practicable after receiving the report.
Division 3 Accredited certifiers
204   Grounds for refusing, withdrawing or suspending accreditation
(cf clause 81L of EP&A Regulation 1994)
(1)  For the purposes of section 109T (2) (c) of the Act, an accreditation body may withdraw a person’s accreditation as an accredited certifier if:
(a)  the person dies, or
(b)  the person is a mentally incapacitated person, or
(c)  the person makes a written request to the accreditation body for the withdrawal of that person’s accreditation, or
(d)  the person’s accreditation as a certifier (in whatever terms expressed) is suspended (otherwise than at that person’s request) under a corresponding law, or
(e)  the person has been accredited on the basis of an error of fact (whether or not arising from a misrepresentation made by the person), or
(f)  the accreditation body is satisfied that the person is not a fit and proper person to be an accredited certifier.
(1A)  Without limiting any other grounds on which a person may be found not to be fit and proper, an accreditation body may be satisfied that a person is not a fit and proper person to be an accredited certifier on the ground that the person:
(a)  has contravened a law, whether or not a New South Wales law, and whether or not the contravention is an offence, or
(b)  has failed to comply with a statutory or other duty, or a contractual obligation, imposed on the person by or in accordance with a law, whether or not a New South Wales law, or
(c)  is an undischarged bankrupt, or
(d)  has represented himself or herself as being an accredited certifier when the person was not an accredited certifier, or
(e)  has contravened any code of conduct of an accreditation body.
(2)  For the purposes of section 109T (2) (c) of the Act, an accreditation body may suspend a person’s accreditation as an accredited certifier if:
(a)  the person makes a written request to the accreditation body for the suspension of that person’s accreditation, or
(b)  the person’s accreditation as a certifier (in whatever terms expressed) is suspended (otherwise than at that person’s request) under a corresponding law.
(3)  For the purposes of section 109T (2) (c) of the Act, an accreditation body may refuse to accredit a person as an accredited certifier on any of the grounds on which it could (otherwise than at that person’s request) withdraw or suspend that person’s accreditation under subclause (1) or (2).
(4)  In this clause, corresponding law means:
(a)  the Building Act 1975 of Queensland,
(b)  the Building Act 1993 of Victoria,
(c)  the Building Act 1993 of the Northern Territory,
(d)  the Development Act 1993 of South Australia,
(e)  the Construction Practitioners Registration Act 1998 of the Australian Capital Territory.
205   Record keeping by accredited certifiers
(cf clause 81M of EP&A Regulation 1994)
(1)  An accredited certifier must cause copies of the following documents to be kept at his or her business premises at all times:
(a)  any application for a certificate that has been made to the accredited certifier under this Act,
(b)  any written determination that has been made by the accredited certifier in relation to an application for a certificate under this Act,
(c)  any certificate or other document that the accredited certifier has relied on for the purpose of issuing a certificate under this Act,
(d)  any certificate issued by the accredited certifier under this Act,
(e)  any plans and specifications in respect of which the accredited certifier has issued a certificate under this Act,
(f)  a list of the projects in connection with which the accredited certifier has issued complying development certificates or Part 4A certificates, indicating:
(i)  the kinds of certificates issued by the accredited certifier in relation to each such project, and
(ii)  the classification of any building involved in each such project, and
(iii)  the local government area in which each such project was carried out, and
(iv)  except in the case of a subdivision certificate, the person’s estimate of the cost of each project, and
(v)  in the case of a subdivision certificate, the number of lots that will be created by the subdivision,
(g)  any record of a critical stage inspection required to be made by the accredited certifier,
(h)  if the accredited certifier is a principal certifying authority, any copy of a record of a critical stage inspection provided to the principal certifying authority by another certifying authority.
(2)  This clause does not require an accredited certifier to keep copies of any such certificate, or of any ancillary application, determination, plan, specification or other document, for more than 15 years from the date on which the certificate was issued or, in the case of a record of a critical stage inspection, from the time of the inspection.
(3)  An accredited certifier must cause a copy of any document referred to in subclause (1) to be given to the Director-General if the Director-General so requests by notice in writing served on the accredited certifier.
(4)  On ceasing to be an accredited certifier, a person must cause copies of all documents referred to in subclause (1) to be given to the relevant accreditation body.
Part 11 Insurance
Division 1 Preliminary
206   Definitions
(cf clause 81N of EP&A Regulation 1994)
In this Part:
approved professional indemnity contract means an insurance contract that indemnifies an individual, a company or a partnership against an accredited certifier’s statutory liability.
associate has the same meaning as it has in the Corporations Act 2001 of the Commonwealth.
company contract means an approved professional indemnity contract issued to a company.
expiry date, for an approved professional indemnity contract, means the date specified in the contract as the contract’s expiry date.
individual contract means an approved professional indemnity contract issued to an individual.
partnership contract means an approved professional indemnity contract issued to a partnership.
person covered by the contract, in relation to a company contract or partnership contract, means an accredited certifier to whom the indemnity provided by the contract extends.
statutory liability means a person’s liability to pay compensatory damages for breach of professional duty as an accredited certifier (whether actual or alleged) arising from:
(a)  any act or omission of the person, or
(b)  any misleading or deceptive conduct by the person (including conduct that is likely to mislead or deceive) within the meaning of:
(i)  section 52, 53, 53A or 74 of the Trade Practices Act 1974 of the Commonwealth, or
(ii)  any provision of the legislation of this or any other State or Territory that corresponds to a section referred to in subparagraph (i),
while acting in the capacity of an accredited certifier, whether as an individual, as a director or employee of a company or as a partner or employee of a partnership.
Division 2 Approved professional indemnity contracts
207   Required insurance: section 109ZN
(cf clause 81O of EP&A Regulation 1994)
For the purposes of section 109ZN (2) of the Act:
(a)  an insurance contract that an accredited certifier is required to be indemnified by is an approved professional indemnity contract, and
(b)  the liability against which an accredited certifier is required to be indemnified by such a contract is the accredited certifier’s statutory liability for the whole of the period during which he or she has been an accredited certifier.
208   Individual contracts
(cf clause 81P of EP&A Regulation 1994)
(1)  An approved professional indemnity contract may provide indemnity to an individual accredited certifier.
(2)  The indemnity provided by an individual contract must extend to all acts and omissions of the person covered by the contract that have occurred at any time since the insured first became an accredited certifier.
(3)  The indemnity provided by an individual contract may be limited to those acts and omissions in respect of which a claim is made against the insured, and notified to the insurer, before the contract’s expiry date.
(4)  Nothing in this clause requires an individual contract to provide indemnity for acts or omissions that occur after the contract’s expiry date.
(5)    (Repealed)
(6)  The requirements of this clause are subject to the exceptions and exclusions allowed by the other provisions of this Part.
209   Company contracts
(cf clause 81Q of EP&A Regulation 1994)
(1)  An approved professional indemnity contract may provide indemnity to a company, including such of the directors or employees of the company as are accredited certifiers.
(2)  The indemnity provided by a company contract must extend to:
(a)  all persons who, at any time during the term of the contract, are or become:
(i)  accredited certifiers, and
(ii)  directors or employees of the company,
whether or not they cease to be accredited certifiers, or cease to be directors or employees of the company, during the term of the contract, and
(b)  all persons who, at any time before the beginning of the term of the contract, had been:
(i)  accredited certifiers, and
(ii)  directors or employees of the company,
but who had ceased to be accredited certifiers, or had ceased to be directors or employees of the company, before the beginning of that term.
(3)  Each person covered by a company contract must be named in the contract.
(4)  The indemnity provided by a company contract must extend to all acts and omissions of the persons covered by the contract that have occurred, while those persons were directors or employees of the company, in the course of work carried out on behalf of the company.
Note.
 A company contract does not cover an accredited certifier for any period before he or she became a director or employee of the company. Consequently the person will need to obtain separate indemnity for that period in order to comply with the requirements of section 109ZN of the Act.
(5)  The indemnity provided by a company contract may be limited to those acts and omissions in respect of which a claim is made against the insured, and notified to the insurer, before the contract’s expiry date.
(6)  Nothing in this clause requires a company contract to provide indemnity for acts or omissions that occur after the contract’s expiry date.
(7)    (Repealed)
(8)  The requirements of this clause are subject to the exceptions and exclusions allowed by the other provisions of this Part.