Environmental Planning and Assessment Regulation 2000
Historical version for 26 March 2010 to 30 March 2010 (accessed 2 June 2020 at 06:10) Current version
Part 7
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.
(3)  In determining whether an alteration, enlargement or extension of a BASIX affected building is BASIX affected development, the certifying authority must make its determination by reference to a genuine estimate of the construction costs of the work, including any part of the work that is BASIX excluded development. The estimate must, unless the certifying authority is satisfied that the estimated cost indicated in the application for a complying development certificate is neither genuine nor accurate, be the estimate so indicated.
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.
(1A)  A council or an accredited certifier may require that the additional information under subclause (1) be obtained by or on behalf of the applicant from a properly qualified person.
(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 or certificates pursuant to clause 4A of Schedule 1 or to an application for a complying development certificate for BASIX optional development that has been accompanied by a BASIX certificate or BASIX certificates (despite there being no obligation under clause 4A of Schedule 1 for it to be so accompanied).
(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.
129B   Restriction on issue of complying development certificate
A certifying authority must not issue a complying development certificate for development unless a council or an accredited certifier has carried out an inspection of the site of the development.
129C   Record of site inspections
(1)  A council or accredited certifier must make a record of each inspection carried out by the council or accredited certifier for the purposes of clause 129B.
(2)  Any council or accredited certifier who is required to make such a record but is not the certifying authority in relation to the issue of the complying development certificate concerned must, within 2 days after the carrying out of the inspection, provide a copy of the record to the certifying authority.
(3)  The record must include the following:
(a)  the date of the application for the complying development certificate,
(b)  the address of the property at which the inspection was carried out,
(c)  the type of inspection,
(d)  the date on which the inspection was carried out,
(e)  if the inspection was carried out by a council, the name of the council and the identity and signature of the individual who carried out the inspection on behalf of the council,
(f)  if the inspection was carried out by an accredited certifier, the identity of the accredited certifier, including, in a case where the accredited certifier is an accredited body corporate, the identity of the individual who carried out the inspection on behalf of the body corporate,
(g)  if the inspection was carried out by an accredited certifier, the accreditation number of the accredited certifier, including, in a case where the accredited certifier is an accredited body corporate, the accreditation number of the individual who carried out the inspection on behalf of the body corporate,
(h)  details of the current fire safety measures in the existing buildings on the site that will be affected by the proposed development concerned,
(i)  details as to whether or not the plans and specifications accompanying the application for the complying development certificate adequately and accurately depict the existing site conditions,
(j)  details of any features of the site, or of any building on the site, that would result in the proposed development the subject of the application for the complying development certificate:
(i)  not being complying development, or
(ii)  not complying with the Building Code of Australia.
Division 2 Determination of applications and commencement of complying development
130AA   Time limit for determining application for complying development certificate
For the purposes of section 85A (8) of the Act, the period prescribed by the regulations is 10 days.
130   Procedure for determining application for complying development certificate and notification requirements
(cf clause 77 of EP&A Regulation 1994)
(1)  A certifying authority must not issue a complying development certificate for building work unless 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.
(2A)  A certifying authority must not issue a complying development certificate for building work that involves an alternative solution under the Building Code of Australia in respect of a fire safety requirement unless the certifying authority has obtained or been provided with either or both of the following issued by a fire safety engineer:
(a)  a compliance certificate referred to in section 109C (1) (a) (v) of the Act that certifies that the alternative solution complies with the relevant performance requirements of the Building Code of Australia,
(b)  a written report that includes a statement that the alternative solution complies with the relevant performance requirements of the Building Code of Australia.
(2B)  Until 28 February 2011, subclause (2A) applies only to building work in respect of:
(a)  a class 9a building, as defined in the Building Code of Australia, that is proposed to have a total floor area of 2,000 square metres or more, and
(b)  any building (other than a class 9a building) that is proposed to have:
(i)  a fire compartment, as defined in the Building Code of Australia, 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,
that involves an alternative solution under the Building Code of Australia in respect of the requirements set out in EP1.4, EP2.1, EP2.2, DP4 and DP5 in Volume 1 of that Code.
(2C)  From 1 March 2011, subclause (2A) applies to all building work that involves an alternative solution under the Building Code of Australia in respect of a fire safety requirement.
(2D)  A fire safety engineer may issue a written report under subclause (2A) (b) in respect of an alternative solution prepared by the engineer.
(2E)  A certifying authority must not issue a complying development certificate for proposed development comprising internal alterations to, or a change of use of, an existing building that is subject to an alternative solution relating to a fire safety requirement under the Building Code of Australia unless:
(a)  the certifying authority has obtained or been provided with a written report by another accredited certifier, who is an accredited certifier for the purpose of issuing a complying development certificate for a building of that kind, and
(b)  the written report includes a statement that the proposed development is consistent with that alternative solution.
(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, and
(d)  the record of any inspection made for the purposes of clause 129B in relation to the issue of the complying development certificate unless the inspection was carried out by the council.
(5), (6)    (Repealed)
131   Development standards for change of building use
(1)  This clause applies to development for which a complying development certificate is sought involving 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 use,
(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 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 involving the alteration, enlargement or extension of an existing building, otherwise than in connection with a change of building use of an existing building.
(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   Development standards for erection of temporary structure
(1)  This clause applies to development for which a complying development certificate is sought involving the erection of a temporary structure.
(2)  The development standards applicable to such development include the following requirements:
(a)  the fire protection and structural capacity of the structure will, when the structure is erected, be appropriate to the proposed use of the structure,
(b)  the ground or other surface on which the structure is to be erected will be sufficiently firm and level to sustain the structure while in use.
134   Form of complying development certificate
(1)  A complying development certificate must contain the following:
(a)  the identity of the certifying authority that issued it, including, in a case where the certifying authority is an accredited body corporate, the identity of the individual who issued the certificate on behalf of the body corporate,
(b)  if the certifying authority is an accredited certifier, the accreditation number of the certifying authority, including, in a case where the certifying authority is an accredited body corporate, the accreditation number of the individual who issued the certificate on behalf of the body corporate,
(b1)  if the certifying authority is an accredited certifier who is an individual, the signature of the accredited certifier,
(b2)  if an individual issued the certificate on behalf of the certifying authority, the signature of the individual who issued the certificate,
(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.
(1A)  A complying development certificate for development that is complying development under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 must also specify:
(a)  the land use zone within which the land is situated, and
(b)  if the land is not zoned under an environmental planning instrument made as provided by section 33A (2) of the Act, the equivalent named land use zone applicable to the land for the purposes of that Policy.
(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 certifying 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, or
(c)  the erection of a temporary structure.
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)    (Repealed)
(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.
(1A)  A complying development certificate for a temporary structure that is used as an entertainment venue must be issued subject to the condition that the temporary structure must comply with Part B1 and NSW Part H102 of Volume One of the Building Code of Australia (as in force on the date the application for the relevant complying development certificate is made).
(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, other than a temporary structure that is used as an entertainment venue.
(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.
Note.
 There are no relevant provisions in the Building Code of Australia in respect of temporary structures that are not entertainment venues.
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 109R 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 109R of the Act, to comply with the technical provisions of the State’s building laws.
136D   Fulfilment of BASIX commitments
(1)  This clause applies to the following development:
(a)  BASIX affected development,
(b)  any BASIX optional development in relation to which a person has made an application for a complying development certificate that has been accompanied by a BASIX certificate or BASIX certificates (despite there being no obligation under clause 4A of Schedule 1 for it to be so accompanied).
(2)  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.
136E   Development involving bonded asbestos material and friable asbestos material
(1)  A complying development certificate for development that involves building work or demolition work must be issued subject to the following conditions:
(a)  work involving bonded asbestos removal work (of an area of more than 10 square metres) or friable asbestos removal work must be undertaken by a person who carries on a business of such removal work in accordance with a licence under clause 318 of the Occupational Health and Safety Regulation 2001,
(b)  the person having the benefit of the complying development certificate must provide the principal certifying authority with a copy of a signed contract with such a person before any development pursuant to the complying development certificate commences,
(c)  any such contract must indicate whether any bonded asbestos material or friable asbestos material will be removed, and if so, must specify the landfill site (that may lawfully receive asbestos) to which the bonded asbestos material or friable asbestos material is to be delivered.
(2)  This clause applies only to a complying development certificate issued after the commencement of this clause.
(3)  In this clause, bonded asbestos material, bonded asbestos removal work, friable asbestos material and friable asbestos removal work have the same meanings as in clause 317 of the Occupational Health and Safety Regulation 2001.
Note 1.
 Under clause 317 removal work refers to work in which the bonded asbestos material or friable asbestos material is removed, repaired or disturbed.
Note 2.
 The effect of subclause (1) (a) is that the development will be a workplace to which the Occupational Health and Safety Regulation 2001 applies while removal work involving bonded asbestos material or friable asbestos material is being undertaken.
Note 3.
 Information on the removal and disposal of asbestos to landfill sites licensed to accept this waste is available from the Department of Environment, Climate Change and Water.
Note 4.
 Demolition undertaken in relation to complying development under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 must be carried out in accordance with Australian Standard AS 2601—2001, Demolition of structures.
136F, 136G   (Repealed)
136H   Condition relating to shoring and adequacy of adjoining property
(1)  A complying development certificate for development must be issued subject to a condition that if the development involves an excavation that extends below the level of the base of the footings of a building on adjoining land, the person having the benefit of the certificate must at the person’s own expense:
(a)  protect and support the adjoining premises from possible damage from the excavation, and
(b)  where necessary, underpin the adjoining premises to prevent any such damage.
(2)  The condition referred to in subclause (1) does not apply if the person having the benefit of the complying development certificate owns the adjoining land or the owner of the adjoining land has given consent in writing to that condition not applying.
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.