Environmental Planning and Assessment Regulation 2000
Historical version for 26 March 2010 to 30 March 2010 (accessed 6 June 2020 at 03:25) Current version
Part 17
Part 17 Miscellaneous
269   Notice of proposal to constitute development area
(cf clause 110 of EP&A Regulation 1994)
A notification under section 132 (4) of the Act of the Director-General’s proposal to include the whole or any part of a council’s area in a development area must be given by instrument in writing posted or delivered to the councils concerned.
270   Contributions plans for Western Sydney Employment Area
(1)  Pursuant to section 80 (11) of the Act, a development application in relation to any land zoned IN1 General Industrial under State Environmental Planning Policy (Western Sydney Employment Area) 2009 must not be determined by the consent authority unless a contributions plan under section 94EA of the Act has been approved for the land to which the application relates.
(2)  Despite subclause (1), a consent authority may dispense with the need for a contributions plan referred to in that subclause if:
(a)  the development application is, in the opinion of the consent authority, of a minor nature, or
(b)  the developer has entered into an agreement with the consent authority with respect to the matters that may be the subject of a contributions plan.
271   (Repealed)
271A   Contributions plans for Wyong State significant sites
(1)  Pursuant to section 80 (11) of the Act, a development application in relation to all or part of a Wyong State significant site must not be determined by the consent authority unless a contributions plan under section 94EA of the Act has been approved for that State significant site.
(2)  Despite subclause (1), a consent authority may dispense with the need for a contributions plan referred to in that subclause if:
(a)  the development application is, in the opinion of the consent authority, of a minor nature, or
(b)  the developer has entered into an agreement with the consent authority that makes adequate provision with respect to the matters that may be the subject of a contributions plan.
(3)  In this clause, Wyong State significant site means the Wyong Employment Zone, being the land to which State Environmental Planning Policy (Major Projects) 2005 (Amendment No 21) applies.
271B   Contributions plans for Warnervale Town Centre State significant sites
(1)  Pursuant to section 80 (11) of the Act, a development application in relation to all or part of the Warnervale Town Centre State significant site must not be determined by the consent authority unless a contributions plan under section 94EA of the Act has been approved for that State significant site.
(2)  Despite subclause (1), a consent authority may dispense with the need for a contributions plan referred to in that subclause if:
(a)  the development application is, in the opinion of the consent authority, of a minor nature, or
(b)  the developer has entered into an agreement with the consent authority that makes adequate provision with respect to the matters that may be the subject of a contributions plan.
(3)  In this clause, Warnervale Town Centre State significant site means the Warnervale Town Centre, being the land to which State Environmental Planning Policy (Major Projects) 2005 (Amendment No 24) applies.
272   Planning for Bush Fire Protection
For the purposes of section 79BA (1) (a) of the Act, the document entitled Planning for Bush Fire Protection, ISBN 0 9751033 2 6, prepared by the NSW Rural Fire Service in co-operation with the Department of Planning, dated December 2006, is prescribed.
273, 273A   (Repealed)
274   Release areas under SREP 30
(1)  Pursuant to section 78A (1) of the Act, a person cannot apply to a consent authority for consent to carry out development on land zoned “Employment” or “Urban” under Sydney Regional Environmental Plan No 30—St Marys unless the Minister has, in accordance with clause 7 of that plan, declared the land, or land that includes the land, to be a release area.
(2)  Subclause (1) does not apply to development referred to in clause 20 (3) or (4) or 48 of Sydney Regional Environmental Plan No 30—St Marys.
274A, 274B   (Repealed)
275   Development assessment during precinct planning in North West and South West growth centres of Sydney Region
(1)  Terms and expressions used in this clause and clause 276 have the same meaning they have in State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (the Growth Centres SEPP).
(2)  Pursuant to section 78A (1) of the Act, a person cannot apply to a consent authority for consent to carry out development of a kind referred to in subclause (3) on land within a precinct of a growth centre that the Minister has declared under clause 276 to be released for urban development unless the application is accompanied by an assessment of the consistency of the proposed development with the relevant growth centre structure plan.
(3)  Subclause (2) applies to the carrying out of development (not being for a single residential dwelling):
(a)  with a capital investment value of more than $500,000, or
(b)  in respect of an area of land of more than 2 hectares, or
(c)  that is a subdivision of land (being a subdivision that creates 2 or more lots).
(4)  This clause does not apply to land to which clause 17 of the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 does not apply.
Note.
 After the release of a precinct for urban development and the completion of the planning process for the precinct, detailed land use and other development controls for the land will be included in the Growth Centres SEPP. A draft of those detailed provisions placed on public exhibition will be a draft amending environmental planning instrument and, accordingly, will be required by section 79C of the Act to be taken into consideration by a consent authority in determining any development application relating to the land concerned.
276   Growth Centres SEPP—release of precinct for urban development and planning process for the precinct
(1)  The Minister may, for the purposes of the Growth Centres SEPP, declare any precinct (or part of a precinct) to be released for urban development. The declaration is to be published in the Gazette and in such other manner as the Minister determines.
Editorial note.
 For declarations under this subclause, see Gazettes No 1 of 5.1.2007, p 4; No 76 of 27.6.2008, p 6368; No 13 of 16.1.2009, p 331; No 50 of 6.3.2009, p 1318 and No 152 of 23.10.2009, p 5479.
(2)  The Minister is to make arrangements for the preparation of a development code that provides guidelines (in conjunction with the relevant growth centre structure plan) to assist environmental planning in precincts released for urban development.
(3)  The Minister is to consult:
(a)  relevant councils about the making of declarations under this clause, and
(b)  relevant councils and such public authorities as the Minister considers appropriate about the making of arrangements under this clause.
277   Public authorities
For the purpose of the definition of public authority in section 4 (1) of the Act, Australian Rail Track Corporation Ltd is prescribed, but only so as:
(a)  to enable the corporation to be treated as a public authority within the meaning of Part 3A of the Act in relation to development for the purposes of rail and related transport facilities that is declared to be a project to which Part 3A applies under State Environmental Planning Policy (Major Development) 2005, and
(b)  to allow the corporation to be a determining authority within the meaning of Part 5 of the Act for:
(i)  development for the purposes of rail infrastructure facilities, development in or adjacent to rail corridors and development for prescribed railways or railway projects that is permitted without consent by a public authority under State Environmental Planning Policy (Infrastructure) 2007, and
(ii)  any other development for the purposes of rail infrastructure facilities and development in or adjacent to rail corridors within the meaning of that Policy that is permitted without consent under any other environmental planning instrument.
278   Assessment of loan commitments of councils in development areas
(cf clause 111 of EP&A Regulation 1994)
(1)  Any assessment to be made on a council under section 143 (1) of the Act is to be made in accordance with the following formula:
 
where:
Contribution represents the amount to be contributed by the council.
Total assessment represents the total assessment for the development area, as referred to in section 143 (1) of the Act.
Rateable value of council represents the value shown in the statement given by the council in relation to the assessment payable during the calendar year ending 31 December 1990 in respect of rateable land in the area or part of the area of the council.
Rateable value of all councils represents the total of the values shown in the statements given by all councils in the development area in relation to the assessment payable during the calendar year ending 31 December 1990 in respect of all rateable land in the areas or parts of the areas of all such councils.
(2)  The corporation is not obliged to notify a council of its intention to make an assessment, but (if an assessment is made) must serve notice of the assessment on each relevant council.
(3)  The notice must be served on or before 1 April before the financial year in which the assessed amount is to be paid.
(4)  For the purposes of section 143 (4) of the Act, the prescribed day is the day occurring 3 months after notice of the assessment is served on the council.
279   What matters must be specified in a planning certificate?
(cf clause 112 of EP&A Regulation 1994)
(1)  The prescribed matters to be specified in a certificate under section 149 (2) of the Act are the matters set out in Schedule 4.
(2)  A certificate under section 149 (2) of the Act may be issued containing only the information set out in clause 3 of Schedule 4.
280   Application for building certificate
(cf clause 112A of EP&A Regulation 1994)
(1)  An application for a building certificate in relation to the whole or a part of a building may be made to the council by:
(a)  the owner of the building or part or any other person having the owner’s consent to make the application, or
(b)  the purchaser under a contract for the sale of property, which comprises or includes the building or part, or the purchaser’s solicitor or agent, or
(c)  a public authority that has notified the owner of its intention to apply for the certificate.
(2)  An application must be accompanied by the fee payable under clause 260.
(3)  Despite subclause (1) (a), the consent in writing of the owner of the building or part is not required if the applicant is a public authority and the public authority has, before making the application, served a copy of the application on the owner.
281   Form of building certificate
A building certificate must contain the following information:
(a)  a description of the building or part of the building being certified (including the address of the building),
(b)  the date on which the building or part of the building was inspected,
(c)  a statement to the effect that the council is satisfied as to the matters specified in section 149D (1) of the Act,
(d)  a statement that describes the effect of the certificate in the same terms as, or in substantially similar terms to, section 149E of the Act,
(e)  the date on which the certificate is issued.
282   Director-General may certify certain documents
(cf clause 113 of EP&A Regulation 1994)
The Director-General is a prescribed officer for the certification of documents under section 150 (1) of the Act.
283   False or misleading statements
(cf clause 115 of EP&A Regulation 1994)
A person is guilty of an offence if the person makes any statement, knowing it to be false or misleading in an important respect, in or in connection with any document lodged with the Director-General or a consent authority or certifying authority for the purposes of the Act or this Regulation.
284   Penalty notice offences: section 127A
(cf clause 115A of EP&A Regulation 1994)
(1)  For the purposes of section 127A of the Act:
(a)  each offence created by a provision specified in Column 1 of Schedule 5 is a prescribed offence, and
(b)  the prescribed penalty for such an offence is the amount specified in Column 2 of Schedule 5.
(2)  If the reference to a provision in Column 1 of Schedule 5 is qualified by words that restrict its operation to specified kinds of offence or to offences committed in specified circumstances, an offence created by the provision is a prescribed offence only if it is an offence of a kind so specified or is committed in the circumstances so specified.
(3)  The following persons are declared to be authorised persons for the purposes of section 127A of the Act:
(a)  any person who is generally or specially authorised by the Minister to be an authorised person for those purposes,
(b)  any person (including a member of staff of the Department) who is generally or specially authorised by the Director-General to be an authorised person for those purposes,
(c)  any person (including an employee of a council) who is generally or specially authorised by a council to be an authorised person for those purposes,
(d)  any police officer.
(4)  Despite subclause (3), the persons referred to in subclause (3) (a) and (b) only are declared to be authorised persons for the purposes of section 127A of the Act for the following offences:
(a)  an offence referred to in section 125 (1) of the Act in relation to a contravention of section 85A (10A) or (11) (a), 109D (2) or (3), 109E (3) (d), 109F (1) (b), 109H (3) (a) or (b), (4) (a), (5) (a) or (b) or (6) (a), 109J (1) (a), (b), (e), (f) or (g), or (2) (a), or
(b)  an offence referred to in section 125 (2) of the Act in relation to a contravention of clause 126 (2), 130 (3) or (4), 134 (1), (2) or (2A), 138 (1), (2) or (3), 142 (1) or (2), 143A (2), 144 (2), (5), (6) or (7), 146, 147 (1) or (2), 151 (1) or (2), 152 (3), 153 (1) or (2), 154A (2), 154B (2), 154C (1), 155 (1) or (2), 157 (5), 160 (1) or (2), 162 (1), 162B (1) or (2), 162C (4) or (5) (a) or (b) or 227A (2).
285   (Repealed)
286   Repeal, savings and transitional
(cf clause 116 of EP&A Regulation 1994)
(1)  The Environmental Planning and Assessment Regulation 1994 is repealed.
(2)  Anything begun under a provision of the Environmental Planning and Assessment Regulation 1994 before the repeal of that Regulation may be continued and completed under that Regulation as if that Regulation had not been repealed.
(3)  Subject to subclause (2), anything done under a provision of the Environmental Planning and Assessment Regulation 1994 for which there is a corresponding provision in this Regulation (including anything arising under subclause (2)) is taken to have been done under the corresponding provision of this Regulation.
(4)  Any instrument (including a schedule attached to a building approval or to a fire safety order) in force under the Environmental Planning and Assessment Regulation 1994 immediately before its repeal is taken to have been issued under this Regulation, and may be amended or revoked accordingly.
286A   Savings and transitional provisions: staged introduction of scheme
(1)  The amendments to this Regulation made by the Environmental Planning and Assessment Amendment (Building Sustainability Index: BASIX) Regulation 2004 do not apply to:
(a)  a development application, or application for a complying development certificate, that has been made before 1 July 2004, or
(b)  a development application, or application for a complying development certificate that is made on or after 1 July 2004, but before 1 January 2005, in relation to a building to be constructed:
(i)  pursuant to a building agreement entered into before 1 July 2004, or
(ii)  pursuant to a building agreement entered into on or after 1 July 2004 as a consequence of an offer made, or deposit paid, before 1 July 2004, or
(c)  a development consent or complying development certificate arising from an application referred to in paragraph (a) or (b), or
(d)  an application for a construction certificate or occupation certificate that is made in relation to development carried out under the authority of a development consent or complying development certificate arising from an application referred to in paragraph (a) or (b).
(2)  The amendments to this Regulation made by the regulation referred to in subclause (1) do not apply, in relation to land outside the initial BASIX area, to:
(a)  a development application, or application for a complying development certificate, that has been made before 1 July 2005, or
(b)  a development consent or complying development certificate arising from an application referred to in paragraph (a), or
(c)  an application for a construction certificate or occupation certificate that is made in relation to development carried out under the authority of a development consent or complying development certificate arising from an application referred to in paragraph (a).
(3)  The amendments to this Regulation made by the Environmental Planning and Assessment Further Amendment (Building Sustainability Index: BASIX) Regulation 2005 do not apply to:
(a)  a development application, or application for a complying development certificate, that has been made before 1 October 2005, or
(b)  a development consent or complying development certificate arising from an application referred to in paragraph (a), or
(c)  an application for a construction certificate or occupation certificate that is made in relation to development carried out under the authority of a development consent or complying development certificate arising from an application referred to in paragraph (a).
(4)  The amendments to this Regulation made by the Environmental Planning and Assessment Further Amendment (Building Sustainability Index: BASIX) Regulation 2006 do not apply to:
(a)  a development application, or application for a complying development certificate, that has been made before 1 October 2006, or
(b)  a development consent or complying development certificate arising from an application referred to in paragraph (a), or
(c)  an application for a construction certificate or occupation certificate that is made in relation to development carried out under the authority of a development consent or complying development certificate arising from an application referred to in paragraph (a).
286AA   Savings and transitional provision: introduction of BASIX completion receipt
The amendments to this Regulation made by the Environmental Planning and Assessment Amendment (Building Sustainability Index: BASIX) Regulation 2006 apply only in respect of the issuing of a final occupation certificate for a BASIX affected building, or for part of such a building, on or after 1 July 2006.
Note.
 An existing building may become a BASIX affected building by a change of building use. Under the Act, a final occupation certificate can be issued to authorise a person to commence a new use of an existing building resulting from a change of building use.
286B   Savings and transitional provision: changes to development contributions scheme
Section 93E (2) of the Act, as inserted by the Environmental Planning and Assessment Amendment (Development Contributions) Act 2005, extends to money paid under Division 6 of Part 4 of the Act before its substitution by that Act.
286C   Transitional—species impact statements and determination of significant effect
(1)  An amendment made to section 110 (Content of species impact statement) of the Threatened Species Conservation Act 1995 by the Threatened Species Conservation Amendment Act 2002 does not apply to or in respect of a species impact statement:
(a)  that accompanies a development application lodged under Part 4 of the Act before or within 6 months after the commencement of the amendment, or
(b)  that is submitted to a determining authority in connection with a Part 5 approval if the application for that approval (or for any of the Part 5 approvals required for that activity if the activity requires more than one Part 5 approval) is made before or within 6 months after the commencement of the amendment, or
(c)  that is considered by a determining authority in connection with the carrying out of an activity by or on behalf of the determining authority if the determining authority makes its determination to carry out the activity (or to have it carried out on its behalf) before or within 6 months after the commencement of the amendment.
(2)  The substitution of section 5A (Significant effect on threatened species, populations or ecological communities, or their habitats) of the Environmental Planning and Assessment Act 1979 by the Threatened Species Conservation Amendment Act 2002 does not apply to or in respect of:
(a)  development that is the subject of a development application lodged under Part 4 of the Act before or within 6 months after the substitution of that section (but not so as to affect the application of that section as substituted in respect of any part or aspect of that development that is the subject of a subsequent development application lodged more than 6 months after the substitution of that section), or
(b)  an activity that is the subject of an application for a Part 5 approval made before or within 6 months after the substitution of that section, or
(c)  an activity carried out by or on behalf of a determining authority if the determining authority makes its determination to carry out the activity (or to have it carried out on its behalf) before or within 6 months after the substitution of that section.
(3)  Subclause (2) does not apply in the case of a development application or application for a Part 5 approval lodged or made within 6 months after the substitution of section 5A of the Environmental Planning and Assessment Act 1979 if the applicant advises the consent authority or determining authority in writing at the time of making or lodging the application that section 5A as substituted is to apply (in which case that section as substituted applies to and in respect of the development or activity concerned).
(4)  In this clause:
activity and determining authority have the same meanings as in Part 5 of the Act.
Part 5 approval means an approval of an activity by a determining authority that is required to enable the activity to be carried out.
286D   Savings and transitional provisions: existing uses
(1)  Subject to subclause (2), the amendments to this Regulation made by the amending Regulation extend to and in respect of an existing use that was an existing use before the commencement of the amending Regulation (including a use that was taken to be an existing use for the purposes of the Act).
Note.
 Before the commencement of the Environmental Planning and Assessment Amendment (Existing Uses) Regulation 2006 clause 41 of this Regulation enabled an existing use to be changed to, among other uses, a use that would otherwise be prohibited under the Act and provided that a use to which an existing use was changed was itself taken to be an existing use.
(2)  The amendments to this Regulation made by the amending Regulation do not affect any:
(a)  application for development consent in respect of an existing use:
(i)  made before the commencement of the amending Regulation, or
(ii)  made on or after the commencement of the amending Regulation that relates to:
(A)  the use of a building, work or land if that application arises from, or is consequential to, a development consent for subdivision that was granted before the commencement of the amending Regulation (or after that commencement by virtue of the operation of this clause), or
(B)  the internal fitout, landscaping or other related development of a building, work or land if that application arises from, or is consequential to, a development consent relating to the building, work or land that was granted before the commencement of the amending Regulation (or after that commencement by virtue of the operation of this clause), or
(b)  a development consent or complying development certificate arising from an application referred to in paragraph (a), or
(c)  an application for a construction certificate or occupation certificate that is made in relation to a development carried out under the authority of a development consent or complying development certificate arising from an application referred to in paragraph (a).
(3)  In this clause, amending Regulation means the Environmental Planning and Assessment Amendment (Existing Uses) Regulation 2006.
287   Special provisions relating to ski resort areas
Schedule 6 has effect.
288   Special provision relating to Sydney Opera House
(1)  To the extent that any development that is to be carried out at the Sydney Opera House is development to which Part 4 of the Act applies, the provisions of the Management Plan for the Sydney Opera House are prescribed for the purposes of section 79C (1) (a) (iv) of the Act as a matter that must be taken into consideration by the consent authority in determining a development application in respect of that development.
(2)  To the extent that any development that is to be carried out at the Sydney Opera House is a project to which Part 3A of the Act applies, the Director-General’s report under section 75I of the Act in relation to the project must include:
(a)  the provisions of the Management Plan for the Sydney Opera House that are relevant to the carrying out of the development, and
(b)  advice as to the extent to which the project is consistent with the objectives of that Management Plan.
Note.
 Section 75J (2) of the Act requires the Minister to consider the Director-General’s report (and the reports, advice and recommendations contained in it) when deciding whether or not to approve the carrying out of a project.
(3)  In this clause:
Management Plan for the Sydney Opera House means the management plan that relates to Sydney Opera House that has been approved by the Minister administering the Sydney Opera House Trust Act 1961 and published in the Gazette.
Sydney Opera House means the land identified on Map 1 to Schedule 3 to State Environmental Planning Policy (Major Development) 2005.
289   Miscellaneous savings and transitional provisions: 2005 Amending Act
(1)  In this clause and clause 289A:
(2) Adoption of model provisions An environmental planning instrument made after the commencement of the repeal of section 33 of the Act by Schedule 2 to the 2005 Amending Act (but initiated before that commencement) may, despite the repeal of that section, adopt model provisions made under that section as in force immediately before its repeal. Accordingly, those model provisions continue in force for the purposes of any environmental planning instrument that adopts them and clause 93 (2) of Schedule 6 to the Act extends to those provisions.
(3)  For the purposes of subclause (2), an environmental planning instrument is taken to have been initiated if the relevant council (or the Director-General, as the case requires) has resolved to make the instrument.
(4) Pending development control plans Clause 94 (1) of Schedule 6 to the Act extends to a development control plan that was approved before 30 September 2005 but did not take effect until after that date.
(5), (5A)    (Repealed)
(6) Existing section 117 (2) directions continue to apply to draft plans Despite clause 96 (2) of Schedule 6 to the Act, a direction given under section 117 (2) of the Act before the commencement of Schedule 2 to the 2005 Amending Act continues in force in relation to a draft local environmental plan only if the draft plan:
(a)  is submitted to the Director-General under section 68 (4) of the Act before 31 December 2006, or
(b)  is the subject of a report under section 69 of the Act that is furnished before that date.
(7) Master plans under epis made before 31 December 2005 A reference in clause 95 (2) of Schedule 6 to the Act to a provision of an environmental planning instrument that requires, before the grant of development consent, a master plan for the land concerned extends to a provision of that kind in an environmental planning instrument that is made before 31 December 2005.
289A   Transitional provisions relating to development control plans
(1)  This clause applies to a development control plan:
(a)  that was made before 30 September 2005 and in force immediately before that date, or
(b)  that was approved before 30 September 2005 (but did not take effect until after that date), or
(c)  that is approved after 30 September 2005 (regardless of when it takes effect).
(2)  Section 74C of the Act (as inserted by the 2005 Amending Act) does not render invalid any provision of a development control plan to which this clause applies until whichever of the following happens first:
(a)  the principal local environmental planning instrument applying to the land to which the development control plan applies adopts the provisions of a standard instrument as referred to in section 33A of the Act,
(b)  the expiration of the period of 5 years following the date of commencement of the Standard Instrument (Local Environmental Plans) Order 2006.
(3)  This clause has effect despite clause 94 (2) of Schedule 6 to the Act.
290   Savings and transitional provision: references to “comprehensive development applications”
(1)  A reference in an environmental planning instrument to a comprehensive development application (as referred to in clause 92A immediately before the repeal of that clause by the Environmental Planning and Assessment Amendment (Planning Instruments and Development Consents) Regulation 2005) is taken to be a reference to a staged development application within the meaning of the Act.
(2)  Section 83C (1) of the Act does not apply to any provision of an environmental planning instrument (as in force as at the commencement of this clause) that requires the making of a comprehensive development application that is taken to be a staged development application.
291   Savings and transitional provisions relating to requirements to obtain compliance certificates for alternative fire safety solutions
(1)  Clause 130 (2A) applies to a complying development certificate only if the application for the certificate was made after 1 March 2008.
(2)  Clause 144A applies to a construction certificate only if the application for the certificate was made after 1 March 2008.
(3)  Clause 153A applies to an occupation certificate only if the application for the certificate was made after 1 March 2008 and the certificate is for a building resulting from building work in respect of which a compliance certificate under clause 130 (2A) or 144A is required.
(4)  In relation to building work or a building to which clause 130 (2A), 144A or 153A does not apply immediately before 1 March 2011 because of the operation of clause 130 (2B) or 144A (2), subclauses (1)–(3) have effect as if a reference to 1 March 2008 were a reference to 1 March 2011.
292   Savings and transitional provisions
Schedule 7 has effect.