Environmental Planning and Assessment Regulation 2000
Historical version for 20 June 2016 to 7 July 2016 (accessed 5 August 2020 at 01:04) Current version
Part 9 Division 8 Clause 187
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 or an application for a complying development certificate 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
(a1)    (Repealed)
(a2)  a development application or an application for a complying development certificate for the use of a building as an entertainment venue, or
(a3)    (Repealed)
(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 or under clause 98 or 136A) does not make appropriate provision with respect to:
(i)  the building in relation to which the change of building use is sought, or
(ia)  the building proposed to be used as an entertainment venue, or
(ib)    (Repealed)
(ii)  the proposed building work, or
(b)  that compliance with any specified provision of the Building Code of Australia (as applied by or under clause 98 or 136A) 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 136A. 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 136A) 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 or under clause 98 or 136A), 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 or under clause 98 or 136A) by an applicant in relation to development the subject of an application referred to in subclause (1) (a) or (a2) 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 or under clause 98 or 136A),
(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 Secretary.
(8)  The Secretary:
(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 Secretary.
(10)  Concurrence is to be assumed if at least 40 days have passed since concurrence was sought and the Secretary 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 Secretary is subject.
(12)  When granting development consent for development the subject of an application referred to in subclause (1) (a) or (a2), 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 or temporary structure, 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 or a temporary structure 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.