Environmental Planning and Assessment Regulation 2000
Historical version for 5 August 2016 to 5 January 2017 (accessed 2 June 2020 at 06:58) Current version
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Status information

Currency of version
Historical version for 5 August 2016 to 5 January 2017 (accessed 2 June 2020 at 06:58)
Legislation on this site is usually updated within 3 working days after a change to the legislation.

Provisions in force
The provisions displayed in this version of the legislation have all commenced. See Historical Notes

Does not include amendments by:
Environmental Planning and Assessment Amendment Act 2008 No 36, Schs 3.3 and 4.2 [4] and [6] (not commenced)
Water Industry Competition Amendment (Review) Act 2014 No 57 (not commenced)
Coastal Management Act 2016 No 20 (not commenced)
Statute Law (Miscellaneous Provisions) Act (No 2) 2016 No 55 (not commenced — to commence on 6.1.2017)

Authorisation
This version of the legislation is compiled and maintained in a database of legislation by the Parliamentary Counsel's Office and published on the NSW legislation website, and is certified as the form of that legislation that is correct under section 45C of the Interpretation Act 1987.

File last modified 25 October 2016.

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)
(1)  In this Regulation:
accredited body corporate has the same meaning as in the Building Professionals Act 2005.
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 any building that contains one or more dwellings, but does not include a hotel or motel.
BASIX affected development means any of the following development that is not BASIX excluded development:
(a)  development that involves the erection (but not the relocation) of a BASIX affected building,
(b)  development that involves a change of building use by which a building becomes a BASIX affected building,
(c)  development that involves the alteration, enlargement or extension of a BASIX affected building, where the estimated construction cost of the development is:
(i)  $100,000 or more—in the case of development for which a development application or an application for a complying development certificate is made on or after 1 October 2006 and before 1 July 2007, or
(ii)  $50,000 or more—in the case of development for which a development application or an application for a complying development certificate is made on or after 1 July 2007,
(d)  development for the purpose of a swimming pool or spa, or combination of swimming pools and spas, that services or service only one dwelling and that has a capacity, or combined capacity, of 40,000 litres or more.
BASIX certificate means a certificate issued by the Secretary under clause 164A.
BASIX excluded development means any of the following development:
(a)  development for the purpose of a garage, storeroom, car port, gazebo, verandah or awning,
(b)  alterations, enlargements or extensions to a building listed on the State Heritage Register under the Heritage Act 1977,
(c)  alterations, enlargements or extensions that result in a space that cannot be fully enclosed (for example, a verandah that is open or enclosed by screens, mesh or other materials that permit the free and uncontrolled flow of air), other than a space can be fully enclosed but for a vent needed for the safe operation of a gas appliance,
(d)  alterations, enlargements or extensions that the Secretary has declared, by order published in the Gazette, to be BASIX excluded development.
BASIX optional development means any of the following development that is not BASIX excluded development:
(a)  development that involves the alteration, enlargement or extension of a BASIX affected building, where the estimate of the construction cost of the development is:
(i)  less than $100,000—in the case of development for which a development application or an application for a complying development certificate is made on or after 1 October 2006 and before 1 July 2007, or
(ii)  less than $50,000—in the case of development for which a development application or an application for a complying development certificate is made on or after 1 July 2007,
(b)  development for the purpose of a swimming pool or spa, or combination of swimming pools and spas, that services or service only one dwelling and that has a capacity, or combined capacity, of less than 40,000 litres.
building premises, in relation to a building, means the building and the land on which it is situated.
capital investment value of a development or project includes all costs necessary to establish and operate the project, including the design and construction of buildings, structures, associated infrastructure and fixed or mobile plant and equipment, other than the following costs:
(a)  amounts payable, or the cost of land dedicated or any other benefit provided, under a condition imposed under Division 6 or 6A of Part 4 of the Act or a planning agreement under that Division,
(b)  costs relating to any part of the development or project that is the subject of a separate development consent or project approval,
(c)  land costs (including any costs of marketing and selling land),
(d)  GST (within the meaning of A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth).
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 or part of 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 or part of a 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).
coastal council means a council whose area, or part of whose area, is included within the coastal zone (within the meaning of the Coastal Protection Act 1979) or whose area includes land that adjoins the tidal waters of the Hawkesbury River, Sydney Harbour and Botany Bay, and their tributaries.
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.
Dark Sky Planning Guideline means the Dark Sky Planning Guideline prepared by the Secretary and published in the Gazette.
Note.
 The Guideline is available on the website of the Department.
deemed-to-satisfy provisions has the same meaning as in the Building Code of Australia.
dwelling, in relation to a BASIX affected building, means a room or suite of rooms occupied or used, or so constructed or adapted as to be capable of being occupied or used, as a separate domicile.
entertainment venue means a building used as a cinema, theatre or concert hall or an indoor sports stadium.
environmental impact statement means an environmental impact statement referred to in section 78A, 112 or 115Y 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 transmits a fire alarm signal from the system to an alarm monitoring network.
fire alarm communication link works means the installation or conversion of a fire alarm communication link to connect with the fire alarm monitoring network of a private service provider, but does not include works that are associated with the alteration, enlargement, extension or change of use of an existing building.
Fire Commissioner means the Commissioner of Fire and Rescue NSW.
fire compartment has the same meaning as in the Building Code of Australia.
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 engineer means a person holding Category C10 accreditation under the Building Professionals Act 2005.
fire safety order means an order of the kind referred to in item 6 of the table to section 121B (1) of the Act and includes, if an order is subsequently made under section 121R of the Act, an order under that section.
fire safety requirement means a requirement under the Building Code of Australia relating to:
(a)  a fire safety system, as defined in the Building Code of Australia, and components of a fire safety system, or
(b)  the safety of persons in the event of fire, or
(c)  the prevention, detection or suppression of fire.
fire safety schedule means a schedule referred to in clause 168 (1) or 182 (2).
fire sprinkler system means a system designed to automatically control the growth and spread of fire that may include components such as sprinklers, valves, pipework, pumps, boosters and water supplies.
gateway certificate means a gateway certificate issued under Part 4AA of State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007.
Gateway Panel means the Mining and Petroleum Gateway Panel constituted under Part 4AA of State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007.
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.
planning agreement means an agreement referred to in section 93F of the Act.
private service provider means a person or body that has entered into an agreement with Fire and Rescue NSW 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.
regional panel means a joint regional planning panel.
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 applicable to the development when the construction certificate is issued or (in the case of a construction certificate modified under clause 148) modified, 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)    (Repealed)
(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)    (Repealed)
(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.
Siding Spring Observatory means the land owned by the Australian National University at Siding Spring and the buildings and equipment on that land.
site compatibility certificate means the following:
(a)  site compatibility certificate (affordable rental housing),
(b)  site compatibility certificate (infrastructure),
(c)  site compatibility certificate (seniors housing).
site compatibility certificate (affordable rental housing) means a certificate issued under clause 37 (5) of State Environmental Planning Policy (Affordable Rental Housing) 2009.
site compatibility certificate (infrastructure) means a certificate issued under clause 19 (5) of State Environmental Planning Policy (Infrastructure) 2007.
site compatibility certificate (seniors housing) means a certificate issued under clause 25 (4) of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004.
site verification certificate means a site verification certificate issued under Part 4AA of State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007.
Standard Instrument means the standard instrument set out in the Standard Instrument (Local Environmental Plans) Order 2006.
temporary building means:
(a)  a temporary structure, or
(b)  a building that is stated to be a temporary building in a 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).
(2)  A reference in this Regulation to building work does not include a reference to any physical activity involved in the erection of a temporary structure.
Note.
 Building work is defined by the Act to mean any physical activity involved in the erection of a building.
(3)  A reference in this Regulation to an existing building does not include a reference to a temporary structure.
3A   Exclusion from definition of “development”
For the purposes of the definition of development in section 4 (1) of the Act, the demolition of a temporary structure is prescribed as not being such development.
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   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 or State significant development) are identified as advertised development:
(a)    (Repealed)
(b)  integrated development (not being 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, 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.
(3)    (Repealed)
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.
(2A), (3)    (Repealed)
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 1A Transitional Part 3A projects
8A   Definitions
(1)  In this Part:
environmental assessment requirements for a project (including a concept plan for a project) means environmental assessment requirements prepared by the Secretary under section 75F of the Act.
project means development to which Part 3A of the Act applies.
project application means:
(a)  an application for the Minister’s approval to carry out a project under Part 3A of the Act, or
(b)  an application for the Minister’s approval for a concept plan for a project under Part 3A of the Act, or
(c)  a single application for both an approval to carry out a project under Part 3A of the Act and for a concept plan for a project under that Part.
(2)  In this Part:
(a)  a reference to the end of the public consultation period for a project or concept plan is a reference to the end of the period of 30 days referred to in section 75H (3) of the Act in relation to the project or concept plan, and
(b)  a reference to the end of the proponent’s environmental assessment period for a project or concept plan is a reference to the time at which the proponent has complied with all of the Secretary’s requirements under section 75H of the Act.
(3)  In this Part, a reference to section 75F, 75H or 75I of the Act includes, in the case of a concept plan for a project, a reference to any such section as applied by section 75N of the Act.
8B   Matters for environmental assessment and Ministerial consideration
The Secretary’s report under section 75I of the Act in relation to a project is to include the following matters (to the extent that those matters are not otherwise included in that report in accordance with the requirements of that section):
(a)  an assessment of the environmental impact of the project,
(b)  any aspect of the public interest that the Secretary considers relevant to the project,
(c)  the suitability of the site for the project,
(d)  copies of submissions received by the Secretary in connection with public consultation under section 75H or a summary of the issues raised in those submissions.
Note.
 Section 75J (2) of the Act requires the Minister to consider the Secretary’s report (and the reports, advice and recommendations contained in it) when deciding whether or not to approve the carrying out of a project.
8C   Time limits for dealing with applications and other matters
The following time limits are prescribed for dealing with applications and other matters under Part 3A of the Act:
(a)  The time within which the Secretary is to notify the proponent of environmental assessment requirements with respect to a project or concept plan is 28 days after the proponent requests the Secretary to prepare those requirements.
(b)  The time within which the Secretary is to accept the environmental assessment with respect to a project or concept plan, or require the proponent to submit a revised environmental assessment, under section 75H of the Act is 21 days after the environmental assessment is received by the Secretary.
(c)  The time within which the Secretary is required to send copies of submissions received or a report of the issues raised in those submissions to the proponent and others under section 75H (5) of the Act (or to notify the proponent that no submissions were received) is 10 days after the end of the public consultation period for the project or concept plan.
8D   Rejection of applications if proponent fails to comply with requirements
(1)  This clause applies to project applications.
(2)  If:
(a)  any such application has not been duly made, and
(b)  the Secretary has notified the proponent of the action required to ensure that the application is duly made, and
(c)  the proponent has failed to take that action within 14 days after being so notified,
the Minister may decide to reject the application without determining whether to approve or disapprove of the carrying out of the project or to give or refuse to give approval for the concept plan (as the case requires).
(3)  If:
(a)  the proponent has failed to comply with the Secretary’s requirements under section 75H of the Act in connection with an application, and
(b)  the Secretary has notified the proponent of the requirements that have not been complied with, and
(c)  the proponent has failed to comply with those requirements within 21 days after being so notified,
the Minister may decide to reject the application without determining whether to approve or disapprove of the carrying out of the project or to give or refuse to give approval for the concept plan (as the case requires).
(4)  An application is taken to be rejected and never to have been made when the proponent is given notice of the Minister’s decision to reject the application under this clause.
(5)  The Secretary must refund to the proponent the whole of any fee paid in connection with an application that is rejected under this clause.
8E   Provisions relating to appeals
(1) Date of receipt of notice of determination For the purposes of determining the commencement of the appeal period under section 75K (2) (a), 75L (3) or 75Q (2) (a) of the Act, notice of the determination concerned is received on the date that the notice is received (or taken to have been received) in accordance with section 153 of the Act.
(2) Proponent appeal relating to approval of project—deemed refusal For the purposes of section 75K (2) (b) of the Act, the date on which a pending application for approval to carry out a project is taken to have been refused for the purposes only of enabling an appeal within 3 months after the date of the deemed refusal is as follows:
(a)  60 days from the end of the proponent’s environmental assessment period for the project, except as provided by paragraph (b) or (c),
(b)  120 days from the end of that period if the Secretary notifies the proponent, when notifying the environmental assessment requirements for the project, that the project involves a complex environmental assessment and approval process,
(c)  30 days from the end of that period if the Secretary notifies the proponent, when notifying the environmental assessment requirements for the project, that the project does not involve a complex environmental assessment and approval process.
(3) Proponent appeal relating to concept plan or modification of concept plan—deemed refusal For the purposes of section 75Q (2) (b) of the Act, the date on which a pending application for approval of a concept plan or to modify a concept plan is taken to have been refused for the purposes only of enabling an appeal within 3 months after the date of the deemed refusal is as follows:
(a)  60 days from the end of the proponent’s environmental assessment period for the concept plan, except as provided by paragraph (b) or (c),
(b)  120 days from the end of that period if the Secretary notifies the proponent, when notifying the environmental assessment requirements for the concept plan, that the concept plan involves a complex environmental assessment and approval process,
(c)  30 days from the end of that period if the Secretary notifies the proponent, when notifying the environmental assessment requirements for the concept plan, that the concept plan does not involve a complex environmental assessment and approval process.
(4) Proponent appeal relating to modifications of approval The time within which an appeal may be made under section 75W (5) of the Act is 3 months after:
(a)  the date on which the proponent received (or is taken to have received) notice of the determination of the request for a modification of the approval for a project in accordance with section 153 of the Act, or
(b)  the expiration of the period of 40 days after the request for the modification was made during which the Minister has failed to determine the request.
8F   Owner’s consent or notification
(1)  The consent of the owner of land on which a project is to be carried out is required for a project application or modification application unless:
(a)  the application is made by a public authority, or
(b)  the application relates to a critical infrastructure project, or
(c)  the application relates to a mining or petroleum production project, or
(d)  the application relates to a linear infrastructure project, or
(e)  the application relates to a project on land with multiple owners designated by the Secretary for the purposes of this clause.
(1A)  The consent of the New South Wales Aboriginal Land Council is required for a project application or modification application relating to land owned by a Local Aboriginal Land Council if the consent of the Local Aboriginal Land Council is required as owner of the land to the application.
(2)  Any such consent may be obtained at any time before the determination of the application.
(3)  If the consent of the owner of the land is not required for a project application under this clause, then the proponent is required to give notice of the application:
(a)  in the case of a linear infrastructure project or a project designated under subclause (1) (e)—to the public by advertisement published in a newspaper circulating in the area of the project before the start of the public consultation period for the project, or
(b)  in the case of a project that comprises mining or petroleum production (other than a project that also comprises a linear infrastructure project)—to the public by advertisement published in a newspaper circulating in the area of the project before the end of the period of 14 days after the application is made, or
(c)  in the case of a critical infrastructure project (other than a project that also comprises a linear infrastructure project or mining or petroleum production project)—to the owner of the land before the end of period of 14 days after the application is made, or
(d)  in any other case—to the owner of the land at any time before the application is made.
(4)  In this section:
linear infrastructure project means development for the purposes of linear transport or public utility infrastructure.
mining or petroleum production includes any activity that is related to mining or petroleum production, but does not include any activity to the extent that it is carried out on land that is a state conservation area reserved under the National Parks and Wildlife Act 1974.
modification application means a request for modification of approval for a project under section 75W of the Act.
8G   Public information about documents relating to projects
(1)  This clause applies to the duty of the Secretary under section 75X (2) of the Act to make specified documents relating to a project publicly available.
(2)  The documents are to be made available on the Department’s website and in such other locations as the Secretary determines.
(3)  The documents are to be posted on the Department’s website and in those other locations within 14 days of:
(a)  in the case of a document that is an application, request or submission—the date on which the application, request or submission is made, or
(b)  in the case of a document that is a determination of environmental assessment requirements, a report or an approval—the date on which the determination, report or approval is made or given.
(4)  In addition to the documents referred to in section 75X (2) of the Act, the Secretary is to include on the Department’s website and in such other locations as the Secretary determines the following documents:
(a)  the declaration of development as a project to which Part 3A of the Act applies or its declaration as a critical infrastructure project,
(b)  guidelines published under section 75F or 75H of the Act,
(c)  any environmental assessment in relation to a project that has been placed on public exhibition under section 75H of the Act,
(d)  responses to submissions, preferred project reports and other material in relation to a project provided to the Secretary by the proponent after the end of the public consultation period (whether under section 75H (6) of the Act or otherwise),
(e)  reports of panels under section 75G of the Act (as in force before its repeal) or of reviews by the Planning Assessment Commission or reports by the Planning Assessment Commission where a public hearing has been held,
(f)  any reasons given to the proponent by the Minister as referred to in section 75X (3) of the Act.
(5)  A document may be made available on the Department’s website by providing an electronic link to the document on another website.
8H   Fees
The fees for applications and exercise of functions under Part 3A of the Act are as set out in Part 15 of this Regulation.
8I   Enforcement: critical infrastructure
In accordance with section 75R (5) of the Act, Division 2A of Part 6 of the Act applies to a critical infrastructure project only to the extent that it authorises the Minister or the Secretary to give an order or exercise any other function under that Division.
8J   Transitional provisions
(1AA)  The Secretary may accept, as an application for approval of a project under Part 3A of the Act, any development application made under Part 4 of the Act with respect to any development before it becomes a project to which Part 3A of the Act applies. The Secretary may, for that purpose, require any matter to be provided by the applicant that he or she could require to be included in the application under section 75E of the Act.
(1)  The Secretary may adopt (with or without modification), as environmental assessment requirements for a project or concept plan, environmental assessment requirements issued by the Secretary under Part 4 or Part 5 of the Act with respect to any development or activity before it becomes a project to which Part 3A of the Act applies.
(2)  The Secretary may accept (with or without modification), as an environmental assessment for a project or part of a project or concept plan:
(a)  an environmental impact statement obtained in accordance with the requirements of the Secretary under Part 4 or Part 5 of the Act with respect to any development or activity before it becomes a project or part of a project to which Part 3A of the Act applies, or
(b)  a statement of environmental effects (as referred to in clause 2 (1) (c) of Schedule 1) prepared in connection with the development concerned before it becomes a project or part of a project to which Part 3A of the Act applies, or
(c)  a written assessment arising out of the consideration, under section 111 of the Act, of the environmental impact of an activity and prepared before the activity becomes a project or part of a project to which Part 3A of the Act applies.
(2A)  If the Secretary accepts (with or without modification) an environmental impact statement, a statement of environmental effects or a written assessment as an environmental assessment for a project or part of a project or a concept plan:
(a)  the Secretary is taken to have prepared environmental assessment requirements in respect of the project or part of a project or concept plan, and
(b)  the environmental assessment as so accepted is taken to comply with those requirements.
(3)  The Secretary may accept, as a period of public availability of the environmental assessment for a project or part of a project or concept plan (under section 75H (3) of the Act), a period of public exhibition of an environmental impact statement or a statement of environmental effects referred to in subclause (2) before the relevant development or activity becomes a project or part of a project to which Part 3A of the Act applies. For that purpose, and to avoid doubt, if the period of public exhibition is less than 30 days, it is accepted only to the extent of the actual period of public exhibition.
(3A)  If any such period of public exhibition of an environmental impact statement or a statement of environmental effects is accepted by the Secretary, the proponent must provide the Secretary with any written submissions made during the public exhibition period in relation to the relevant development or activity.
(4)  Despite its repeal, section 88A of the Act continues to apply (and Parts 3A and 5.1 and Division 4.1 of Part 4 of the Act do not apply) to development that is the subject of a development application that was directed to be referred to the Minister under that section before its repeal.
(4A)  If a development application is made after the commencement of Part 3A of the Act in respect of any development that:
(a)  was, immediately before the repeal of section 89 of the Act, the subject of a direction under that section, and
(b)  is not a project to which Part 3A of the Act applies,
the Minister may direct that the application is to be determined (unless the development application is withdrawn by the applicant) as if the amendments made to the Act by Schedule 1 to the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 had not been made.
(5)  If a development application is made after the commencement of Part 3A of the Act in respect of any development that, immediately before the commencement of Part 3A, was declared to be State significant development by notice in force under section 76A (7) of the Act, the Minister may direct that the application is to be determined (unless the development application is withdrawn by the applicant) as if the amendments made to the Act by Schedule 1 to the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 had not been made.
(6)  Clause 89 of Part 17 to Schedule 6 to the Act extends to development applications pending on the commencement of Part 3A of the Act for development that was State significant development on the commencement of the State Environmental Planning Policy (State Significant Development) 2005.
(7)  If:
(a)  a development application was made before the commencement of Part 3A of the Act on the basis that the development was State significant development, and
(b)  the Minister is required to form an opinion that the development is State significant development in order to determine the application on that basis (but the Minister had not, before that commencement, formed an opinion on the matter),
the Minister may, after that commencement, form an opinion that the development was, at the time the application was made, State significant development. In that case, the application is to be determined (unless withdrawn by the applicant) as if the amendments made to the Act by Schedule 1 to the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 had not been made.
Note.
 The references to State significant development in this subclause refer to the meaning that term had before the commencement of Part 3A and not to its current meaning.
(8)  For the purposes only of modification, the following development consents are taken to be approvals under Part 3A of the Act and section 75W of the Act applies to any modification of such a consent:
(a)  a development consent granted by the Minister under section 100A or 101 of the Act,
(c)  a development consent granted by the Minister under Part 4 of the Act (relating to State significant development) before 1 August 2005 or under clause 89 of Schedule 6 to the Act,
(d)  a development consent granted by the Land and Environment Court, if the original consent authority was the Minister and the consent was of a kind referred to in paragraph (c).
The development consent, if so modified, does not become an approval under Part 3A of the Act.
(8A)  Subclause (8), as in force before its substitution by the Environmental Planning and Assessment Amendment (Miscellaneous) Regulation 2010, applies to any development consent for which approval for the treatment of the consent as an approval for the purposes of section 75W of the Act:
(a)  was given before that substitution, or
(b)  is given after that substitution, but where the application for the approval was made before that substitution.
(8B)  The Secretary may waive any fee payable in respect of an application under section 75W of the Act if the application relates to a development consent that is taken to be an approval under Part 3A of the Act and a fee has been paid in respect of the application under section 96 of the Act.
(9)  For the purposes of this clause, and to avoid doubt, a development application is made by a person when the person first applies to the consent authority for consent to carry out the particular development, whether or not the application at that time had been consented to by the owner of the land to which the development application relates.
8K   Transitional provision—existing mining leases
(1)  Despite its repeal by Schedule 7.11 to the Amending Act, section 74 of the Mining Act 1992 (Mining unaffected by Environmental Planning and Assessment Act 1979) continues to have effect in respect of an existing mining lease in respect of which mining operations are carried out underground until:
(a)  the end of the relevant transition period, or
(b)  such time as an approval is given to carry out mining operations in the mining area,
whichever is the sooner.
(2)  However, if any such approval is limited to the carrying out of mining operations in a part of the mining area only, section 74 of the Mining Act 1992 continues to have effect in respect of so much of the existing mining lease as relates to the other parts of the mining area, but only until the end of the relevant transition period or until such time as an approval is given to carry out mining operations in those other parts (whichever is the sooner).
(3)  In this clause:
approval means an approval under Part 3A of the Act, but does not include the approval of a concept plan under that Part.
existing mining lease means a mining lease in force immediately before 16 December 2005.
mining area, mining lease and mining operations have the same meanings as in the Mining Act 1992.
relevant transition period means:
(a)  the period ending on 30 September 2012 if, on or before 16 December 2010, the Secretary has notified environmental assessment requirements under section 75F (3) of the Act for approval to carry out mining operations in the mining area, or
(b)  the period ending on 16 December 2010, in any other case.
8L   Transitional provision—objections under Mining Act in relation to Part 3A projects
(1)  The reference in clause 28 (b) of Schedule 1 to the Mining Act 1992 to any person who is entitled to make submissions in relation to the granting of development consent to use land for the purpose of obtaining minerals or for one or more mining purposes (the relevant development) is taken to include:
(a)  if the relevant development is development to which Part 3A of the Act applies—a reference to any person who is entitled, under section 75H of the Act, to make a written submission in relation to the approval of that project, or
(b)  if the Secretary has, under clause 8J (3) of this Regulation, accepted a period of public exhibition of an environmental impact assessment with respect to the relevant development before it becomes a project to which Part 3A of the Act applies—a reference to any person who was entitled to make a written submission during the public exhibition period in relation to the relevant development.
(2)  Pursuant to Part 1 of Schedule 6 to the Act, this clause is taken to have commenced on the commencement of Part 3A of the Act.
8M   Transitional provisions—development consents under Part 4 of the Act and approvals under Part 5 of the Act
(1)  If development is declared to be a project under Part 3A of the Act, any development consent under Part 4 of the Act or approval under Part 5 of the Act that applies to the project or land on which the project is to be carried out continues in force despite that declaration.
(2)  If a declaration of a project under Part 3A of the Act is revoked before or after approval has been given under that Part to carry out the project, the Minister may make any of the following determinations:
(a)  that the whole or part of the effect of the approval is preserved and is taken to be a development consent granted under Part 4 of the Act by an appropriate consent authority nominated by the Minister,
(b)  that the whole or a specified part of an action under Part 4 or Part 5 of the Act in respect of the whole or part of a project is revived and has effect,
(c)  that an environmental assessment under Part 3A of the Act is to be recognised for the purpose of complying with a specified environmental assessment requirement under Part 4 or Part 5 of the Act.
(3)  A determination of the Minister under subclause (2) has effect on the revocation of the declaration of the project.
(4)  Subclause (2) does not apply if a project ceases to be a project to which Part 3A of the Act applies because of section 75P (1) (b) of the Act.
8N   Projects or concept plans for which approval may not be given concerning environmentally sensitive land or sensitive coastal locations
(1)  For the purposes of sections 75J (3) and 75O (3) of the Act, approval for a project application may not be given under Part 3A of the Act for any project, or part of a project, that:
(a)  is located within an environmentally sensitive area of State significance or a sensitive coastal location, and
(b)  is prohibited by an environmental planning instrument that would not (because of section 75R of the Act) apply to the project if approved.
(2)  To avoid doubt, a project is not prohibited for the purposes of subclause (1) (b) if:
(a)  it is not permitted because of the application of a development standard under the environmental planning instrument, or
(b)  it is prohibited under the environmental planning instrument but is permitted to be carried out because of the application of another environmental planning instrument to the environmental planning instrument.
(3)  In this clause:
environmentally sensitive area of State significance has the same meaning as it has in State Environmental Planning Policy (State and Regional Development) 2011.
sensitive coastal location has the same meaning as it has in Schedule 4A to the Act.
8O   Other projects prohibited by environmental planning instruments for which project approval may not be given
(1)  For the purposes of section 75J (3) of the Act, approval for the carrying out of a project may not be given under Part 3A of the Act for any project, or part of a project, that:
(a)  is not the subject of an authorisation or requirement under section 75M of the Act to apply for approval of a concept plan, and
(b)  is prohibited by an environmental planning instrument that would not (because of section 75R of the Act) apply to the project if approved.
(2)  To avoid doubt, a project is not prohibited for the purposes of subclause (1) (b) if:
(a)  it is not permitted because of the application of a development standard under the environmental planning instrument, or
(b)  it is prohibited under the environmental planning instrument but is permitted to be carried out because of the application of another environmental planning instrument to the environmental planning instrument.
(3)  This clause does not apply to a project for which the giving of approval is prohibited by clause 8N.
8OA   Transitional provision—projects or concept plans otherwise prohibited for which approval may be given
Clauses 8N and 8O do not apply to a project application if, before the commencement of those clauses, the Secretary had notified the proponent of environmental assessment requirements under section 75F of the Act relating to the project, or part of the project, concerned.
8P   Surrender of approvals given under Part 3A of the Act or existing use rights
(1)  A surrender of an approval under Part 3A of the Act or a right conferred by Division 10 of Part 4 of the Act (referred to in section 75YA of the Act) is to be made by giving to the Secretary a notice in writing of the surrender of the approval or right.
(2)  The notice must contain 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 approval or right relates,
(c)  a description of the approval or right to be surrendered,
(d)  if the person giving notice is not the owner of the land, a statement by the owner of the land to the effect that the owner consents to the surrender of the approval or right.
(3)  A duly signed and delivered notice of surrender of an approval or right conferred by Division 10 of Part 4 of the Act takes effect on the date determined by the Secretary and operates, according to its terms, to surrender the approval or right to which it relates.
Part 2 Environmental planning instruments
9   Joint regional planning panel—eligible relevant planning authority
For the purposes of Part 3 of the Act, a joint regional planning panel is prescribed under section 54 of the Act as a body that may be directed by the Minister to be the relevant planning authority for a proposed LEP.
10   Public authorities must concur in proposed reservation of land by LEP
A planning proposal for a proposed LEP may not contain a proposed reservation of land for a purpose referred to in section 26 (1) (c) of the Act unless the public authority that is to be designated for the purposes of section 27 of the Act as the authority required to acquire the land has notified the relevant planning authority of its concurrence to the reservation of the land for that purpose.
10A   Notification when council does not support request to prepare planning proposal
When a council does not support a written request made to the council by a person for the preparation of a planning proposal under Part 3 of the Act, the council is required to notify the person as soon as practicable in writing that the proposal is not supported.
11   Fee payable for costs and expenses of studies etc by relevant planning authority
(1)  The relevant planning authority may enter into an agreement with a person who requests the preparation of a planning proposal under Part 3 of the Act for the payment of the costs and expenses incurred by the authority in undertaking studies and other matters required in relation to the planning proposal.
(2)  The fee payable to the relevant planning authority for the payment of those costs and expenses is:
(a)  if the authority is a council—the fee set out or determined in accordance with the agreement, or
(b)  in any other case—an amount (not exceeding $25,000) determined by the authority to cover the costs and expenses reasonably incurred by the authority in undertaking the studies or other matters, or such greater amount as may be agreed in the particular case.
(3)  A fee payable by a person under this clause is due and payable at the time notified in writing to the person by the relevant planning authority.
(4)  If the relevant planning authority is the Commission or a regional panel, the functions of the relevant planning authority under this clause are exercisable by the Secretary.
(5)  A reference in this clause to an agreement includes a reference to an arrangement.
12   Continuation of former provisions for making LEPs
(1)  In this clause:
amending LEP means a LEP that (apart from provisions for citation, commencement, definitions, purpose, land to which it applies and similar ancillary provisions) contains only direct amendments to or repeals of other environmental planning instruments. Any other LEP is a principal LEP even if it also contains direct amendments to or repeals of other environmental planning instruments.
former LEP plan-making provisions means the provisions of:
(a)  Part 3 of the Act and the regulations under the Act, and
(b)  Part 5 of the Heritage Act 1977, and
(c)  sections 28 and 29 of the Local Government Act 1993,
relating to the making of LEPs, as in force immediately before 1 July 2009 (the date of commencement of Schedule 1 to the Environmental Planning and Assessment Amendment Act 2008).
pending LEP means:
(a)  a draft principal LEP, if the Secretary was informed of the decision to prepare the plan under section 54 of the Act before 1 July 2009, or
(b)  a draft amending LEP, if the Secretary was informed of the decision to prepare the plan under section 54 of the Act before 1 July 2009, but only until 1 July 2010 (or if the Secretary had not issued a certificate under section 65 for public exhibition of the draft before 1 July 2009, until 1 January 2011).
(2)  The former LEP plan-making provisions continue to apply to the making of a pending LEP unless the Secretary notifies the council that they cease to apply. In that case, the Minister may, under clause 122 (2) of Schedule 6 to the Act, dispense with any conditions precedent to the making of the LEP (subject to compliance with such other requirements, if any, as are imposed by the Minister).
(3)  Despite subclause (2), section 25 of the Act, as in force immediately before 1 July 2009, does not continue to apply to the making of a pending LEP that is an amending LEP.
(4)  A pending LEP made under the former LEP plan-making provisions is taken to be a LEP made by the Minister under Division 4 of Part 3 of the Act, as amended by Schedule 1 to the Environmental Planning and Assessment Amendment Act 2008.
(5)  In any Act or instrument, a reference in relation to a pending LEP:
(a)  to a planning proposal includes a reference to a draft local environmental plan, and
(b)  to community consultation includes a reference to the public exhibition of any such draft plan.
12A   Operation of 2010 amending Regulation
(1)  This clause applies to any pending LEP to which the former LEP plan-making provisions continue to apply because of clause 12, as amended by the Environmental Planning and Assessment Amendment (Transitional Arrangements) Regulation 2010, but to which those provisions did not apply before the commencement of that Regulation.
(2)  For the purposes of the application of the former LEP plan-making provisions to a pending LEP to which this clause applies, any thing purporting to have been done or omitted before the commencement of that Regulation in accordance with the former LEP plan-making provisions in respect of the pending LEP is taken to have been done or omitted under and in accordance with the former LEP plan-making provisions.
(3)  The amendments to clause 12 made by the Environmental Planning and Assessment Amendment (Transitional Arrangements) Regulation 2010 apply, but this clause does not apply, to the proposed local environmental plan relating to South Tralee submitted to the Secretary on or about 6 November 2009 by the Queanbeyan City Council.
13   Saving of previous threatened species consultation under section 34A
Any consultation undertaken in relation to a proposed environmental planning instrument before 1 July 2009 under section 34A of the Act, as in force immediately before that date, is (if the instrument is not made before that date) taken to be consultation undertaken under that section as in force after that date.
14   Saving of actions taken for preparation of SEPP
Anything done in relation to a proposed SEPP before 1 July 2009 under Division 2 of Part 3 of the Act, as in force immediately before that date, is (if the SEPP is not made before that date) taken to have been done under that Division as in force after that date.
15   REPs deemed to be SEPPs—interpretation
(1)  A provision of a regional environmental plan that becomes a SEPP on 1 July 2009 does not prevail over any other environmental planning instrument because the plan becomes a SEPP on that date if it would not have prevailed over that instrument before that date.
(2)  A provision of a regional environmental plan that becomes a SEPP on 1 July 2009 does not have the same effect as a provision of a SEPP for the purposes of Part 3A of the Act if it would not have had that effect before 1 July 2009.
15A   Transitional provision relating to affordable housing
Until the commencement of Part 5B of the Act (to be inserted by Schedule 3 to the Environmental Planning and Assessment Amendment Act 2008), section 94F (3) (b) of the Act is to be construed as if the reference to a condition authorised to be imposed by a LEP (which before the commencement of Schedule 1 to that Act included a reference to a condition authorised to be imposed by a regional environmental plan) were a reference to a condition authorised to be imposed by a SEPP or a LEP.
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, 17A   (Repealed)
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 apartment development
(1)  The council must not approve a draft development control plan (including an amending plan) containing provisions that apply to residential apartment 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 local government area (or for 2 or more local government areas that include the council’s area), and
(b)  has taken into consideration:
(i)  any comments made by the design review panel concerning those provisions, and
(ii)  the matters specified in Parts 1 and 2 of the Apartment Design Guide.
(2)  This clause extends to a plan the preparation of which commenced before the constitution of the 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.
22A   Amendment or revocation of development control plan at Minister’s direction
(1)  This clause applies if the Minister directs a council under section 74F of the Act:
(a)  to revoke a development control plan, or
(b)  to amend a development control plan and the direction specifies that the amending plan is not required to be exhibited.
(2)  The council may amend or revoke the development control plan by making a development control plan.
(3)  The council must give public notice in a local newspaper of the making of the development control plan not later than 14 days after making the plan.
(4)  Notice of a development control plan to revoke a development control plan must specify the following:
(a)  the date the council made the plan and when the plan takes or took effect,
(b)  the name of the plan that is to be revoked.
(5)  Notice of a development control plan to amend a development control plan must specify the following:
(a)  the date the council made the plan and when the plan takes or took effect,
(b)  the name of the plan that is to be amended,
(c)  that the amendment is in accordance with a direction under section 74F of the Act.
(6)  The development control plan comes into effect on the date that the notice is given, or 14 days after the council makes the development control plan, whichever occurs first.
(7)  Clauses 18, 21, 21A, 22 and 23 do not apply to a development control plan made under this clause.
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 Secretary
24   Application of Part to development control plans made by the Secretary
(cf clause 23 of EP&A Regulation 1994)
This Part applies to a development control plan prepared by the Secretary, as the relevant planning authority, under section 74C of the Act, subject to the following modifications:
(a)  a reference to a council is taken to be a reference to the Secretary,
(b)  a reference to a local environmental plan or deemed environmental planning instrument is taken to be a reference to a State environmental planning policy.
Division 6 Miscellaneous
25   Additional information requested by relevant planning authority
(1)  If an environmental planning instrument requires or permits a development control plan to be prepared and submitted to the relevant planning authority, the planning authority may request the owners (as referred to in section 74D of the Act) who are submitting the plan to provide the planning authority with such additional information as the planning authority considers necessary for the purposes of making the plan.
(2)  Any such request is to be in writing.
(3)  The information that the relevant planning authority may request is limited to information relating to any relevant matter referred to in an environmental planning instrument.
(4)  In accordance with section 74D (6) of the Act, the 60-day period referred to in section 74D (5) of the Act may be extended by the number of days from the day on which the request for the information was made until the day on which the information is provided or on which the owners refuse to supply the information (whichever is the sooner).
(5)  If the owners refuse to supply the requested information, the development control plan is taken not to have been submitted to the relevant planning authority.
25AA   Assessment and preparation fees
(1)  If a draft development control plan under section 74D of the Act is prepared (and submitted to the relevant planning authority) by the owners of the land to which it applies, the owners must pay the relevant planning authority an assessment fee as determined by the planning authority.
(2)  If any such draft development control plan is prepared by the relevant planning authority at the request of the owners (or the percentage of the owners as referred in section 74D (3) of the Act), those owners must pay the planning authority a preparation fee as determined by the planning authority.
(3)  Any such assessment or preparation fee must not exceed the reasonable cost, to the relevant planning authority, of assessing or preparing the draft development control plan, carrying out any associated studies and publicly exhibiting the draft plan.
(4)  If there is more than one owner of the land to which the draft development control plan applies, the fee concerned is to be apportioned between them as the relevant planning authority determines.
(5)  If the Minister, in accordance with section 74D (5) (b) of the Act, acts in the place of a council to make the development control plan concerned, the council must, if directed by the Minister to do so, forward to the Minister any assessment or preparation fee that has been paid to the council in relation to that plan.
(6)  Any assessment or preparation fees payable under clause 272, 273, 273A, 274A or 274B (as in force before their repeal by the Environmental Planning and Assessment Amendment (Planning Instruments and Development Consents) Regulation 2005) are taken to be fees (as determined by the relevant planning authority concerned) payable under this clause. If, under any such repealed clause, a lessee was liable to pay a fee, a reference in this clause to the owner of the land extends to any such lessee.
25AB   Councils to provide copies of development control plans to Secretary
A council must, within 28 days of making a development control plan, provide the Secretary with a copy of the plan.
25AC   Purchase of copies of development control plans
Copies of a development control plan (including any document referred to in a development control plan such as a supporting map, plan, diagram, illustration or other material) are to be made available for purchase from the principal office of the relevant planning authority that prepared the plan.
Note.
 Under section 74E (4) of the Act, a development control plan must be available for inspection (without charge) at the principal office of the relevant planning authority that prepared the plan.
The above clause does not require the relevant planning authority 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.
25AD   Further transitional provisions: 2005 Amending Act
(1)  In this clause:
deemed DCP means a master plan, in force under a provision of an environmental planning instrument immediately before the relevant commencement, that is taken to be a development control plan under section 74D of the Act because of clause 95 of Schedule 6 to the Act, and includes a master plan that is taken to be a development control plan as provided by subclause (4).
relevant commencement means the date on which Schedule 2 to the 2005 Amending Act commences.
(2) Effect of section 74C on deemed DCPs Section 74C (2) and (5) of the Act (as inserted by the 2005 Amending Act) does not render invalid any deemed DCP until such time as the principal local environmental planning instrument applying to the land concerned adopts the applicable mandatory provisions of the Standard Instrument.
(3) Amendment of deemed DCPs A deemed DCP may be amended or revoked only in accordance with the procedures provided in relation to the making of the master plan by the environmental planning instrument under which it was made. Accordingly, section 74C (4) of the Act does not apply in relation to a deemed DCP.
(4) Pending master plans Any master plan lodged under a provision of an environmental planning instrument but not made or adopted as at the relevant commencement may, after that commencement, proceed to be made or adopted as if the amendments made to the Act and this Regulation by Schedules 2 and 7.3 to the 2005 Amending Act had not been made. Once it is made or adopted, the master plan is taken to be a development control plan under section 74D of the Act.
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 Secretary 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 development application or a project application, the planning authority is to ensure that public notice of the proposed agreement, amendment or revocation is given:
(a)  in the case of an agreement in connection with a development application:
(i)  if practicable, as part of and contemporaneously with, and in the same manner as, any notice of the development application that is required to be given by a consent authority for a development application by or under the Act, or
(ii)  if it is not practicable for notice to be given contemporaneously, as soon as possible after any notice of the development application that is required to be given by a consent authority for a development application by or under the Act and in the manner determined by the planning authorities that are parties to the agreement, or
(b)  in the case of an agreement in connection with a project application:
(i)  if practicable, as part of and contemporaneously with, and in the same manner as, any notice of an environmental assessment in connection with the application that is required to be given by the Secretary by or under the Act, or
(ii)  if it is not practicable for notice to be given contemporaneously, as soon as possible after any notice of an environmental assessment for the project that is required to be given by the Secretary by or under the Act and in the manner determined by the planning authorities that are parties to the agreement.
(1A)  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, the planning authority is to ensure that public notice of the proposed agreement, amendment or revocation is given:
(a)  if practicable, as part of and contemporaneously with, and in the same manner as, any public notice of the relevant planning proposal that is required under Part 3 of the Act, or
(b)  if it is not practicable for notice to be given contemporaneously, as soon as possible after any public notice of the relevant planning proposal that is required under Part 3 of the Act and in the manner determined by the planning authorities that are parties to the agreement.
(2)    (Repealed)
(2A)  In the case of a planning agreement of a kind other than an agreement referred to in subclause (1), (1A) or (2) of which public notice is required to be given under section 93G of the Act, the Secretary is to ensure that public notice of the proposed agreement, amendment or revocation is given not less than 28 days before the agreement is entered into or amended or revoked and in the manner determined by the planning authorities that are parties to the agreement.
(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.
(4)  In this clause:
project application has the same meaning as it has in Part 1A.
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), and
(g)  state whether the agreement, amendment or revocation specifies that certain requirements of the agreement must be complied with before a construction certificate, occupation certificate or subdivision certificate is issued.
(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   Secretary to facilitate public inspection of relevant planning agreements
(1)  The Secretary must keep a planning agreement register.
(2)  The Secretary 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 Secretary 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 Secretary,
(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,
(j)  the costs of enabling access by disabled persons in respect of the development,
(k)  the costs of energy and water efficiency measures associated with the development,
(l)  the cost of any development that is provided as affordable housing,
(m)  the costs of any development that is the adaptive reuse of a heritage item.
(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
(1)  The maximum percentage of the proposed cost of carrying out development that may be imposed by a levy under section 94A of the Act is:
(a)  in the case of development other than development specified in paragraph (b):
(i)  if the proposed cost of carrying out the development is up to and including $100,000—nil, or
(ii)  if the proposed cost of carrying out the development is more than $100,000 and up to and including $200,000—0.5 per cent of that cost, or
(iii)  if the proposed cost of carrying out the development is more than $200,000—1 per cent of that cost, or
(b)  in the case of development on land specified in the Table to this paragraph—the percentage specified in Column 2 of the Table opposite the relevant proposed cost of carrying out the development listed in Column 1 of the Table.
Table
Column 1
Column 2
Proposed cost of carrying out the development
Maximum percentage of the levy
Land within the Neighbourhood Centre, Commercial Core, Mixed Use or Enterprise Corridor zone under Liverpool City Centre Local Environmental Plan 2007
Less than $1,000,000
Nil
$1,000,000 or more
3 per cent
Land within the High Density Residential or Light Industrial zone under Liverpool City Centre Local Environmental Plan 2007
Less than $1,000,000
Nil
$1,000,000 or more
2 per cent
Land within the Commercial Core zone under Wollongong City Centre Local Environmental Plan 2007
Up to and including $250,000
Nil
More than $250,000
2 per cent
Land identified on the Land Application Map under the Gosford City Centre Local Environmental Plan 2007
Up to and including $250,000
Nil
More than $250,000
4 per cent
Land identified on the Land Application Map under Parramatta City Centre Local Environmental Plan 2007
Up to and including $250,000
Nil
More than $250,000
3 per cent
Land identified on the Land Application Map under Newcastle City Centre Local Environmental Plan 2008
Up to and including $100,000
Nil
More than $100,000, up to and including $200,000
0.5 per cent
More than $200,000, up to and including $250,000
1 per cent
More than $250,000
3 per cent
Land identified on the Land Application Map under Burwood Local Environmental Plan (Burwood Town Centre) 2010
Up to and including $250,000
Nil
More than $250,000
4 per cent
Land identified in map 1 to the Chatswood Central Business District (CBD) Section 94A Development Contributions Plan 2011, as adopted by Willoughby City Council on 21 November 2011
Up to and including $100,000
Nil
More than $100,000, up to and including $200,000
0.5 per cent
More than $200,000, up to and including $250,000
1 per cent
More than $250,000
3 per cent
(2)  This clause is subject to any direction given by the Minister under section 94E (1) (d) of the Act.
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 Secretary, 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.
(2A)  Despite subclause (2), a contributions plan may be made for land outside the council’s area for the purposes of a condition referred to in section 94CA of the Act.
(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 to which the plan applies 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.
(1A)  Despite subclause (1) (g), a contributions plan made after the commencement of this subclause that makes provision for the imposition of conditions under section 94 or 94A of the Act in relation to the issue of a complying development certificate must provide that the payment of monetary section 94 contributions and section 94A levies in accordance with those conditions is to be made before the commencement of any building work or subdivision work authorised by the certificate.
Note.
 Clause 136K imposes a condition on a complying development certificate in relation to the timing of payment of monetary section 94 contributions and section 94A levies.
(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:
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
The object of this Part is to regulate existing uses under section 108 (1) of 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, but only if that other use is a use that may be carried out with or without development consent under the Act, or
(e)  if it is a commercial use—be changed to another commercial use (including a commercial use that would otherwise be prohibited under the Act), or
(f)  if it is a light industrial use—be changed to another light industrial use or a commercial use (including a light industrial use or commercial use that would otherwise be prohibited under the Act).
(2)  However, an existing use must not be changed under subclause (1) (e) or (f) unless that change:
(a)  involves only alterations or additions that are minor in nature, and
(b)  does not involve an increase of more than 10% in the floor space of the premises associated with the existing use, and
(c)  does not involve the rebuilding of the premises associated with the existing use, and
(d)  does not involve a significant intensification of that existing use.
(e)    (Repealed)
(3)  In this clause:
commercial use means the use of a building, work or land for the purpose of office premises, business premises or retail premises (as those terms are defined in the Standard Instrument).
light industrial use means the use of a building, work or land for the purpose of light industry (within the meaning of the standard instrument set out in the Standard Instrument (Local Environmental Plans) Order 2006).
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 and 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 and 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 and 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.
46A   (Repealed)
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   Persons who can make development applications
(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 or for a development application for public notification development if the applicant instead gives notice of the application:
(a)  by written notice to the owner of the land before the application is made, or
(b)  by advertisement published in a newspaper circulating in the area in which the development is to be carried out no later than 14 days after the application is made.
(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.
(3A)  Despite subclause (1), a development application made in respect of land owned by a Local Aboriginal Land Council may be made by a person referred to in that subclause only with the consent of the New South Wales Aboriginal Land Council.
(4)  Subclause (3) does not require the consent of the Crown if the development application is for State significant development made by a public authority or public notification development.
(5)  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.
public notification development means:
(i)  State significant development set out in clause 5 (Mining) or 6 (Petroleum (oil and gas)) of Schedule 1 to State Environmental Planning Policy (State and Regional Development) 2011 but it does not include development to the extent that it is carried out on land that is a state conservation area reserved under the National Parks and Wildlife Act 1974, or
(ii)  State significant development on land with multiple owners designated by the Secretary for the purposes of this clause by notice in writing to the applicant for the State significant development.
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)  If a development application that relates to residential apartment development is made on or after the commencement of the Environmental Planning and Assessment Amendment (Residential Apartment Development) Regulation 2015, the application must be accompanied by a statement by a qualified designer.
(1AB)  The statement by the qualified designer must:
(a)  verify that he or she designed, or directed the design, of the development, and
(b)  provide an explanation that verifies how the development:
(i)  addresses how the design quality principles are achieved, and
(ii)  demonstrates, in terms of the Apartment Design Guide, how the objectives in Parts 3 and 4 of that guide have been achieved.
(1B)  If a development application referred to in subclause (1A) is also accompanied by a BASIX certificate with respect to any building, the design quality principles referred to in that subclause need not be verified to the extent to which they aim:
(a)  to reduce consumption of mains-supplied potable water, or reduce emissions of greenhouse gases, in the use of the building or in the use of the land on which the building is situated, or
(b)  to improve the thermal performance of the building.
(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.
(2A)  A development application that relates to development in respect of which a site compatibility certificate is required by a State Environmental Planning Policy must be accompanied by such a certificate.
(2B)    (Repealed)
(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 Secretary (where the Minister or the Secretary 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.
(7)  In determining whether an alteration, enlargement or extension of a BASIX affected building is BASIX affected development, the consent authority must make its determination by reference to a genuine estimate of the construction costs of the work the subject of the development application, including any part of the work that is BASIX excluded development. The estimate must, unless the consent authority is satisfied that the estimated cost indicated in the development application is neither genuine nor accurate, be the estimate so indicated.
50A   Special provisions relating to development applications relating to mining or petroleum development on strategic agricultural land
(1)  This clause applies to a development application that relates to mining or petroleum development (within the meaning of Part 4AA of State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007) on the following land:
(a)  land shown on the Strategic Agricultural Land Map,
(b)  any other land that is the subject of a site verification certificate.
(2)  A development application to which this clause applies must be accompanied by:
(a)  in relation to proposed development on land shown on the Strategic Agricultural Land Map as critical industry cluster land—a current gateway certificate in respect of the proposed development, or
(b)  in relation to proposed development on any other land:
(i)  a current gateway certificate in respect of the proposed development, or
(ii)  a site verification certificate that certifies that the land on which the proposed development is to be carried out is not biophysical strategic agricultural land.
(3)  This clause does not apply to or with respect to a development application if the relevant environmental assessment requirements under Part 2 of Schedule 2 of this Regulation were notified by the Secretary on or before 10 September 2012.
(3A)  In addition to subclause (3), this clause does not apply to or with respect to a development application if:
(a)  the land to which the application relates was not shown (whether in whole or in part) on the Strategic Agricultural Land Map before 28 January 2014, and
(b)  the relevant environmental assessment requirements under Part 2 of Schedule 2 for the development were notified by the Secretary on or before 3 October 2013.
(3B)  However, the Minister or the Secretary, in dealing with an application referred to in subclause (3) or (3A), may seek the advice of the Gateway Panel.
(4)  In this clause, biophysical strategic agricultural land, critical industry cluster land and Strategic Agricultural Land Map have the same meanings as they have in State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007.
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 14 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, or
(c)  being an application referred to in section 78A (8A) of the Act, the application is not accompanied by an environmental impact statement referred to in that subsection.
Note.
 Schedule 2 sets out requirements in relation to environmental impact statements.
(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 is taken for the purposes of the Act never to have been made if the application is rejected under this clause and the determination to reject the application is not changed following any review.
(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 and must notify the applicant in writing of the reasons for the rejection of the application.
(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 (sections 79 (6) and 89F (4) 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 or to a development application in relation to BASIX optional development that has been accompanied by a BASIX certificate or BASIX certificates (despite there being no obligation under clause 2A of Schedule 1 for it to be so accompanied).
(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 State significant development, designated development 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   (Repealed)
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 14 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 14 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 Chief Executive of the Office of Environment and Heritage 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 Chief Executive can make a decision concerning the general terms of approval in relation to such a consent (including whether or not the Chief Executive will grant consent),
the Secretary 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 3A Special provisions relating to staged development applications
70A   Information to be included in staged development applications
Despite clause 50 (1) (a), the information required to be provided in a staged development application in respect of the various stages of the development may, with the approval of the consent authority, be deferred to a subsequent development application.
70B   Staged development applications—residential apartment development
Clause 50 (1A) applies in relation to a staged development application only if the application sets out detailed proposals for the development or part of the development.
Division 4
71–76  (Repealed)
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 Secretary 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 about which the Planning Assessment Commission has conducted a review, 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 the Planning Assessment Commission conducts a review, 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 Secretary
(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 Secretary (if the Minister or the Secretary 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 Secretary has waived the requirement under section 80 (10) (b) of the Act.
Division 6 Public participation—State significant development
82   Application of Division
This Division applies to State significant development.
83   Public exhibition period
For the purposes of section 89F (1) (a) of the Act, the minimum submission period is to be 30 days.
84   Public notice of application
(1)  For the purposes of section 89F (1) (b) of the Act, the notice of the application must be published in a local newspaper and on the website of the Department.
(2)  For the purposes of section 89F (1) (b) of the Act, the notice of the application must be given:
(a)  to such persons that appear to the Secretary to own or occupy the land adjoining the land to which the application relates (unless the notice is in respect of an application for public notification development within the meaning of clause 49), and
(b)  to such public authorities that, in the opinion of the Secretary, may have an interest in the determination of the application.
(3)  For the purposes of this clause:
(a)  if land is a lot within the meaning of the Strata Schemes (Freehold Development) Act 1973, a notice to the owners corporation is taken to be 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 notice to the lessor under the leasehold strata scheme concerned and to the owners corporation is taken to be 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 notice to one owner or one occupier is taken to be notice to all the owners and occupiers of that land.
85   Content of notice
For the purposes of section 89F (1) (b) of the Act, a notice of an application for State significant 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)  the dates of the submission period,
(e)  a statement that the development application and the documents accompanying the application may be inspected during the submission period:
(i)  at the Department’s principal office, and
(ii)  at the council’s principal office,
during the relevant authority’s ordinary office hours,
(f)  a statement that:
(i)  any person during the submission period may make written submissions to the Minister 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)  whether the Minister has directed that a public hearing should be held.
85A   Responding to submissions
(1)  The Secretary is to provide to an applicant for State significant development the submissions, or a summary of the submissions, received in relation to the application during the submission period.
(2)  The Secretary may, by notice in writing, require the applicant to provide a written response to such issues raised in those submissions as the Secretary considers necessary.
85B   Documents to be made publicly available
For the purposes of section 89G (d) of the Act, the Secretary is to make the following documents (that relate to a development application for State significant development) available on the Department’s website and in such other locations as the Secretary determines:
(a)  the environmental assessment requirements,
(b)  the development application, including any accompanying documents or information and any amendments made to the development application,
(c)  any submissions received during the submission period and any response provided under clause 85A,
(d)  any environmental assessment report prepared by the Secretary,
(e)  any development consent or modification to a development consent,
(f)  any application made for a modification to development consent, including any accompanying documents or information,
(g)  any documents or information provided to the Secretary by the applicant in response to submissions.
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 36 of Newcastle Local Environmental Plan 2003 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   Additional matters that consent authority must consider
(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,
(c)  in the case of a development application for the carrying out of development on land that is subject to a subdivision order made under Schedule 5 to the Act, the provisions of that order and of any development plan prepared for the land by a relevant authority under that Schedule,
(d)  in the case of the following development, the Dark Sky Planning Guideline:
(i)  any development on land within the local government area of Coonamble, City of Dubbo, Gilgandra or Warrumbungle Shire,
(ii)  development of a class or description included in Schedule 4A to the Act, State significant development or designated development on land less than 200 kilometres from the Siding Spring Observatory.
(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
Clarence Valley
Coffs Harbour
Eurobodalla
Gosford
Great Lakes
Greater Taree
Kempsey
Kiama
Lake Macquarie
Lismore
Maitland
Manly
Nambucca
Newcastle
Pittwater
Port Macquarie–Hastings
Port Stephens
Randwick
Richmond Valley
Shellharbour
Shoalhaven
Sutherland
Tweed
Warringah
Waverley
Wollongong
Woollahra
Wyong
92A   (Repealed)
93   Fire safety and other 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 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 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 involving 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.
(c)    (Repealed)
(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.
(2A), (2B)    (Repealed)
(3)  The matters prescribed by this clause are prescribed for the purposes of section 79C (1) (a) (iv) of the Act.
94A   Fire safety and other considerations applying to erection of temporary structures
(1)  This clause applies to a development application for the erection of a temporary structure.
(2)  In determining a development application to which this clause applies, a consent authority is to take into consideration:
(a)  whether the fire protection and structural capacity of the structure will be appropriate to the proposed use of the structure, and
(b)  whether 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.
(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 to the following development:
(a)  BASIX affected development,
(b)  any BASIX optional development in relation to which a person has made a development application that has been accompanied by a BASIX certificate or BASIX certificates (despite there being no obligation under clause 2A of Schedule 1 for it to be so accompanied).
(2)  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.
(1A)  For the purposes of section 80A (11) of the Act, it is prescribed as a condition of a development consent for a temporary structure that is used as an entertainment venue, that the temporary structure must comply with Part B1 and NSW Part H102 of Volume One of the Building Code of Australia.
(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, other than a temporary structure to which subclause (1A) applies.
(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 is made for the relevant:
(a)  development consent, in the case of a temporary structure that is an entertainment venue, or
(b)  construction certificate, in every other case.
Note.
 There are no relevant provisions in the Building Code of Australia in respect of temporary structures that are not entertainment venues.
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 109R 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 109R of the Act, to comply with the technical provisions of the State’s building laws.
98C   Conditions relating to entertainment venues
For the purposes of section 80A (11) of the Act, the requirements set out in Schedule 3A are prescribed as conditions of development consent for the use of a building as an entertainment venue.
98D   Condition relating to maximum capacity signage
(1)  For the purposes of section 80A (11) of the Act, the requirement set out in subclause (2) is prescribed as a condition of development consent (including an existing development consent) for the following uses of a building, if the development consent for the use contains a condition specifying the maximum number of persons permitted in the building:
(a)  entertainment venue,
(b)  function centre,
(c)  pub,
(d)  registered club,
(e)  restaurant.
(2)  From 26 January 2010, a sign must be displayed in a prominent position in the building stating the maximum number of persons, as specified in the development consent, that are permitted in the building.
(3)  Words and expressions used in this clause have the same meanings as they have in the Standard Instrument.
98E   Condition relating to shoring and adequacy of adjoining property
(1)  For the purposes of section 80A (11) of the Act, it is a prescribed condition of development consent that if the development involves an excavation that extends below the level of the base of the footings of a building, structure or work (including any structure or work within a road or rail corridor) on adjoining land, the person having the benefit of the development consent must, at the person’s own expense:
(a)  protect and support the building, structure or work from possible damage from the excavation, and
(b)  where necessary, underpin the building, structure or work to prevent any such damage.
(2)  The condition referred to in subclause (1) does not apply if the person having the benefit of the development consent owns the adjoining land or the owner of the adjoining land has given consent in writing to that condition not applying.
Division 9
99  (Repealed)
Division 10 Post-determination notifications
100   Notice of determination
(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,
(c1)  whether the applicant has the right to request a review of the determination under section 82A of the Act,
(c2)  in the case of a consent for a staged development application—whether a subsequent development application is required for any part of the site concerned,
(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 the Planning Assessment Commission has conducted a public hearing in respect of the application,
(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 or a right to make an application for a review 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 Chief Executive of the Office of Environment and Heritage, 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 Secretary of the Department of Industry, Skills and Regional Development, and
(ii)  must be available for public inspection, during ordinary office hours, at the head office of NSW Fisheries.
(7)  For the purposes of section 81 (1) of the Act, a notice of the determination of a development application relating to land owned by a Local Aboriginal Land Council must also be given to the New South Wales Aboriginal Land Council.
(8)  For the purposes of section 81 (1) of the Act, a notice of the determination of a development application to which clause 19 of State Environmental Planning Policy (Three Ports) 2013 applies must also be given to the chief executive of the applicable Port Operator (within the meaning of that Policy) not later than 7 days after the determination is made.
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, her or its accreditation number, and
(ii)    (Repealed)
(iii)  a statement signed by the accredited certifier to the effect that he, she or it consents to being appointed as principal certifying authority, and
(iv)  a telephone number on which he, she or it 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, 60 or 90 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 forwarded within 14 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 forwarded within 14 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, or is taken to have notified, 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 Chief Executive of the Office of Environment and Heritage 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 Chief Executive can make a decision concerning the general terms of approval in relation to such a consent (including whether or not the Chief Executive 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 Secretary of the Office of Environment and Heritage.
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 Chief Executive of the Office of Environment and Heritage under clause 68,
the consent authority must notify the applicant of the effect that this Division has on the various assessment periods 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   Applications 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 the deemed refusal period, being:
(a)  40 days, except in the case of development referred to in paragraph (b) or (c), 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, or
(c)  90 days, in the case of State significant development.
(2)  The deemed refusal period is measured from:
(a)  the date the development application is lodged with the consent authority, or
(b)  the date the Commission complies with clause 268V (3), if a review (with or without a public hearing) has been conducted by the Planning Assessment Commission into development other than development the subject of a development application to which section 97 of the Act does not apply, 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 deemed refusal 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.
(5)  In the case of State significant development for which the relevant submission period exceeds 30 days, the deemed refusal period is to be increased by that part of the submission period that exceeds 30 days, despite subclause (1).
(6)  If the relevant submission period for a development application for State significant development is more than 30 days, the Minister 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.
(7)  In the case of State significant development, any day that occurs between the date of the Secretary’s request for a written response to submissions under clause 85A and the date on which that response is provided to the Secretary is not to be taken into consideration in calculating the number of days in the deemed refusal period.
Note.
 This clause does not apply in respect of a development application if section 97 of the Act does not apply to the application.
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.
113B   Period after which Crown development applications may be referred to Minister or regional panel
(1)  For the purposes of section 89 (2) of the Act, the prescribed period is 70 days after the Crown development application is lodged with the consent authority.
(2)  For the purposes of section 89 (5) of the Act, the prescribed period is 50 days after the Crown development application is referred to the applicable regional panel under section 89 (2) (b) of the Act.
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   (Repealed)
115   Application for modification of 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 (except where the application for the consent the subject of the modification was made, or could have been made, without the consent of the owner),
(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.
(2)  The notification requirements of clause 49 apply in respect of an application if the consent of the owner of the land would not be required were the application an application for development consent rather than an application for the modification of such consent.
(3)  In addition, if an application for the modification of a development consent under section 96 (2) or section 96AA (1) of the Act relates to residential apartment development and the development application was required to be accompanied by a design verification from a qualified designer under clause 50 (1A), the application must be accompanied by a statement by a qualified designer.
(3A)  The statement by the qualified designer must:
(a)  verify that he or she designed, or directed the design of, the modification of the development and, if applicable, the development for which the development consent was granted, and
(b)  provide an explanation of how:
(i)  the design quality principles are addressed in the development, and
(ii)  in terms of the Apartment Design Guide, the objectives of that guide have been achieved in the development, and
(c)  verify that 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.
(3B)  If the qualified designer who gives the design verification under subclause (3) for an application for the modification of development consent (other than in relation to State significant development) does not verify that he or she also designed, or directed the design of, the development for which the consent was granted, the consent authority must refer the application to the relevant design review panel (if any) for advice as to whether the modifications diminish or detract from the design quality, or compromise the design intent, of the development for which the consent was granted.
(4)  If an application referred to in subclause (3) is also accompanied by a BASIX certificate with respect to any building, the design quality principles referred to in that subclause need not be verified to the extent to which they aim:
(a)  to reduce consumption of mains-supplied potable water, or reduce emissions of greenhouse gases, in the use of the building or in the use of the land on which the building is situated, or
(b)  to improve the thermal performance of the building.
(5)  The consent authority may refer the proposed modification to the relevant design review panel but not if the application is for modification of a development consent for State significant development.
(6)  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 a BASIX certificate or BASIX certificates, or if it relates to BASIX optional development in relation to which a person has made a development application that has been accompanied by a BASIX certificate or BASIX certificates (despite there being no obligation under clause 2A of Schedule 1 for it to be so accompanied), must also be accompanied by the appropriate BASIX certificate or BASIX certificates.
(7)  The appropriate BASIX certificate for the purposes of subclause (6) is:
(a)  if the current BASIX certificate remains consistent with the proposed development, the current BASIX certificate, and
(b)  if the current BASIX certificate is no longer consistent with the proposed development, a new BASIX certificate to replace the current BASIX certificate.
(8)  An application for modification of a development consent under section 96 (1), (1A) or (2) or 96AA (1) of the Act relating to land owned by a Local Aboriginal Land Council may be made only with the consent of the New South Wales Aboriginal Land Council.
(9)  The application must be accompanied by the relevant fee prescribed under Part 15.
(10)  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   Modification of consent granted by Court
A copy of an application for the modification of a development consent granted by the Court 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.
117   Modification of consent 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 96AA 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.
(3A)  If an application to which this clause applies relates to a development consent that was originally granted or deemed to have been refused by a regional panel, the council or councils of the area in which the development concerned is to be carried out are to notify or advertise the application, and are to notify the Court (if applicable), in accordance with this clause instead of the regional panel.
(3B)  Subclauses (2)–(3A) do not apply if the application to which this clause applies is in respect of State significant development.
(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   Applications 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 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, or
(c)  by the council or councils of the area in which the development concerned is to be carried out, if the development consent was granted by a regional panel or if the development consent was granted by the Court on appeal and the original development consent was granted or was deemed to have been refused by a regional panel.
(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) or a council referred to in subclause (2) (c) (if development consent was granted by the Court) must, in the case of an application under section 96AA 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—applications 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 96AA 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.
(5A)  If an application to which this clause applies is made about a development consent granted, or deemed to have been refused, by a regional panel, the council or councils of the area in which the development concerned is to be carried out are to notify or advertise the application, and are to notify the Court (if applicable), in accordance with this clause instead of the regional panel.
(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.
119A   Special provisions relating to applications under section 96 (2) relating to strategic agricultural land
(1)  This clause applies to an application to modify a development consent under section 96 (2) of the Act that relates to mining or petroleum development (within the meaning of Part 4AA of State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007) on the following land:
(a)  land shown on the Strategic Agricultural Land Map,
(b)  any other land that is the subject of a site verification certificate.
(2)  An application to which this clause applies must be accompanied by:
(a)  in relation to land shown on the Strategic Agricultural Land Map as critical industry cluster land—a current gateway certificate in respect of the proposed development to be carried out under the modified consent, or
(b)  in relation to any other land:
(i)  a current gateway certificate in respect of the proposed development to be carried out under the modified consent, or
(ii)  a site verification certificate that certifies that the land concerned is not biophysical strategic agricultural land.
(3)  For the avoidance of doubt, Part 4AA of State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (other than Divisions 2 and 5) applies (with all necessary changes) to an application to which this clause applies as if it were an application for development consent.
(4)  For the avoidance of doubt, a site verification certificate or a gateway certificate for the purposes of this clause may be issued with respect to the part of land or the part of the proposed development to which the modification relates (rather than the whole of the land or the whole development to which the consent relates).
(5)  This clause does not apply to or with respect to an application under section 96 (2) of the Act that was made, but not determined, on or before 10 September 2012.
(5A)  In addition to subclause (5), this clause does not apply to or with respect to an application under section 96 (2) of the Act if:
(a)  the land to which the application relates was not shown (whether in whole or in part) on the Strategic Agricultural Land Map before 28 January 2014, and
(b)  the application was made, but not determined, on or before 3 October 2013.
(5B)  However, the Minister or the Secretary, in dealing with an application referred to in subclause (5) or (5A), may seek the advice of the Gateway Panel.
(6)  In this clause, biophysical strategic agricultural land, critical industry cluster land and Strategic Agricultural Land Map have the same meanings as they have in State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007.
120   Notification of concurrence authorities and approval bodies
(1)  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.
(2)  If an application to which this clause applies is made about a development consent granted by a regional panel, the council or councils of the area in which the development concerned is to be carried out are to comply with subclause (1) instead of the regional panel.
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 specify any right of the applicant to seek a review or make an appeal against the determination under the Act.
(3)  If an application for the modification of a development consent applies to land owned by a Local Aboriginal Land Council, notice under subclause (1) must also be given to the New South Wales Aboriginal Land Council.
122A   Effect of failure to determine modification applications
(1)  For the purposes of sections 96 (6) and 96AA (3) of the Act:
(a)  a consent authority is taken to have refused an application under section 96 or 96AA if it fails to determine the application within 40 days after the application is made, and
(b)  a later determination does not prejudice or affect the continuance or determination of an appeal made under section 97AA of the Act in respect of a determination that is taken by this clause to have been made.
(2)  If a later determination is made by granting consent, the consent authority is entitled, with the consent of the applicant and without prejudice to costs, to have an appeal (being an appeal made under section 97AA of the Act in respect of a determination that is taken to have been made by this clause) withdrawn at any time prior to the determination of that appeal.
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 Secretary of the Department of Finance, Services and Innovation 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 12A Additional provisions where regional panel is exercising consent authority functions
123B   Application of Division
(1)  This Division applies to development for which a regional panel has the function of determining the development application or an application to modify a development consent.
(2)  In this Division, a reference to a development application includes a reference to an application to modify a development consent.
123C   Development applications where land is in 2 or more local government areas
(1)  This clause applies to development applications for development located in 2 or more local government areas.
(2)  A separate development application for the proposed development must be lodged with each council for an area in which the proposed development is situated.
123D   Provisions of Act not to apply as if regional panels were councils
(1)  For the purposes of section 23G (5A) of the Act, a regional panel is not taken to be the council for the purposes of the following provisions of the Act:
(a)  section 78A (3)–(6),
(b)  section 81 (2),
(c)  sections 82A, 82C, 82D and 96AB,
(d)  section 89 (2).
Note.
 Under section 23G (5A) of the Act, a regional panel exercising consent authority functions of a council is taken to be the council, subject to the regulations.
(2)  For the purposes of section 23G (5A) of the Act, a regional panel is not taken to be the council for the purposes of appeal proceedings under the Act, or proceedings under section 123 of the Act, if:
(a)  the council is the applicant for a development application or the modification of a development consent, and
(b)  the council makes an appeal under the Act, or brings proceedings under section 123 of the Act, in relation to a determination by the regional panel.
123E   Procedural matters related to determination of development applications
(1)  A regional panel may, for the purpose of determining a development application:
(a)  obtain assessment reports, in addition to any assessment report or other information provided by a relevant council in dealing with the application, and
(b)  obtain other technical advice or assistance as the panel thinks fit.
(2)  If a development consent is granted by a regional panel subject to a condition referred to in section 80 (3) or 80A (2) of the Act, the regional panel is taken to be satisfied as to a matter specified in the condition if the council for the area in which the land on which the development is to be carried out notifies the chairperson of the panel in writing that the matter specified in the condition has been satisfied.
123F   Procedural matters relating to determination of applications to modify consents
For the purposes of section 23H (a) of the Act, a regional panel may carry out consultation for the purposes of section 96 (2) (b) of the Act by directing the general manager of a council for an area in which the development the subject of the consent is to be carried out to consult with the relevant Minister, public authority or approval body on behalf of the regional panel.
Note.
 It is an offence under section 23N (2) of the Act for a general manager to fail to comply with a direction.
Division 12B Applications for review under Division 2 of Part 4 of the Act
123G   Review of determination of development application
A council must give written notice to an applicant of the result of a review under section 82A of the Act as soon as practicable after the review is determined.
123H   Review of decision to reject development application
(1)  An application for a review under section 82B of the Act by a council must be made not later than 14 days after the applicant is given written notice by the council of its decision to reject and not to determine the application.
(2)  A council must give written notice to the applicant of the result of a review as soon as practicable after the review is determined.
(3)  A council is taken to have refused an application for a review if it fails to determine the application within 14 days after the application is made.
123I   Review of modification decision
(1)  An application for a review under section 96AB of the Act is to be made not later than 28 days after the date on which the application for the modification of the development consent was determined.
(2)  An application must be notified or advertised:
(a)  for a period not exceeding 14 days, but otherwise in the same manner as the original application for modification was notified or advertised, or
(b)  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.
(3)  The notice or advertisement must contain the following information:
(a)  a brief description of the original modification 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 notification period.
(4)  Submissions may be made in relation to such an application during the notification period and during that period any person may inspect the application and any accompanying information and make extracts from or copies of them.
(5)  The council must, as soon as practicable after the review is determined, give written notice of the results of the review to:
(a)  the applicant, and
(b)  if the application applies to land owned by a Local Aboriginal Land Council—the New South Wales Aboriginal Land Council (but not if the review confirms the determination).
(6)  In this clause:
notification period means the period during which the application is required to be advertised or notified under subclause (2).
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.
Division 14 Review conditions
124A   Application of Division
This Division applies to a further condition imposed under section 80A (10B) of the Act in relation to a development consent condition that permits extended hours of operation or increases the maximum number of persons permitted in a building (in this Division called a review condition).
124B   Development for which review condition may be imposed
(1)  Development consent for the following uses of a building may be the subject of a review condition:
(a)  entertainment venue,
(b)  function centre,
(c)  pub,
(d)  registered club,
(e)  restaurant.
(2)  Words and expressions used in this clause have the same meanings as they have in the Standard Instrument.
124C   Matters to be included in consent
A consent that is subject to a review condition must include the following:
(a)  a statement that the consent is subject to the condition and the purpose of the condition,
(b)  that the consent authority is to carry out the reviews,
(c)  when, or at what intervals, the reviews are to be carried out.
124D   Review procedures
(1)  The consent authority must give the operator of a development subject to a review condition not less than 14 days written notice that a review is to be carried out under the condition.
(2)  The consent authority may notify such other persons as it thinks fit of the review.
(3)  The consent authority must take into account any submissions made by a person that are received within 14 days after notice is given to the person of a review.
Note.
 Under section 80A (10D) of the Act, a decision to change a review condition of a development consent is taken to be a determination of a development consent and is subject to the notification and appeal provisions under the Act in relation to such a determination.
Division 15 Calling in development as State significant development
124E   Advice of Planning Assessment Commission
(1)  In providing its advice under section 89C (3) of the Act, the Planning Assessment Commission is to consider any general issues relating to State or regional planning significance that the Minister has requested the Commission to consider.
(2)  If the Minister considers that the advice of the Commission does not adequately address any such issue, the Minister may request the Commission to reconsider the issue.
(3)  Nothing in this clause affects the validity of any advice given or decision made under section 89C (3) of the Act.
124F   Calling in existing development applications
(1)  This clause applies to development that is declared to be State significant development by order of the Minister under section 89C (3) of the Act and which is the subject of a development application made and not finally determined before that declaration.
(2)  On making the declaration, the Minister may in writing direct the relevant consent authority:
(a)  to complete any steps in relation to the development application, and
(b)  to forward to the Minister the development application and any other relevant documents and information in relation to the development, and
(c)  to pay to the Secretary a specified proportion of any fees paid in relation to the development application, and
(d)  to notify the applicant, relevant authorities and any other persons or classes of persons specified in the direction that the Minister is now the consent authority for the development.
(3)  On the making of the declaration:
(a)  the development application is taken to be a development application for State significant development, and
(b)  any amount payable under clauses 256F–256L in relation to the development is to be reduced by the amount (if any) payable to the Secretary under subclause (2) (c), and
(c)  any steps taken by the relevant consent authority in respect of the development application are taken to be steps taken by the Secretary or the Minister in relation to the application for State significant development.
124G   Secretary’s functions with respect to proposed orders under section 89C (3) of the Act
The Secretary may exercise the following functions in relation to the making of an order under section 89C (3) of the Act declaring specified development on specified land to be State significant development:
(a)  the receipt of a request made by the proponent for the making of the proposed order,
(b)  the preparation and provision of a report to the Planning Assessment Commission to assist the Commission to advise the Minister on the State or regional planning significance of the proposed development,
(c)  consultation with councils and other relevant agencies for the purpose of preparing that report.
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.
(4)  A single application for a complying development certificate may be made for development comprising the concurrent erection of new single storey or two storey dwelling houses if each is to be erected on existing adjoining lots.
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   (Repealed)
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
(1)  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.
(1A)  If the development affects an existing building that is a class 1b, 2, 3, 4, 5, 6, 7, 8 or 9 building, an inspection of the site of the development must include an inspection of:
(a)  the parts of the building affected by the development, and
(b)  the egress routes from those parts of the building.
(2)  Subclause (1) does not apply in respect of a complying development certificate that relates only to fire alarm communication link works.
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.
129D   Council to be notified of significant fire safety issues
(1)  A certifying authority is required to give written notice to the council in accordance with this clause if:
(a)  an application has been made to the certifying authority for a complying development certificate affecting an existing building, and
(b)  the building is a class 1b, 2, 3, 4, 5, 6, 7, 8 or 9 building, and
(c)  at any time between the application being received and the issue of the complying development certificate, the certifying authority becomes aware (when carrying out an inspection or otherwise) of a significant fire safety issue with any part of the building.
(2)  The notice:
(a)  must describe the fire safety issue and the parts of the building affected by the issue, and
(b)  must be made within 2 days after the certifying authority becomes aware of the fire safety issue.
(3)  However, the certifying authority is not required to give notice if the fire safety issue is being addressed:
(a)  by the proposed development, or
(b)  by a fire safety order, or
(c)  by some other development consent (including a complying development certificate) that affects the building.
(4)  To avoid doubt, this clause extends to a council that is a certifying authority.
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:
(a)  for development that requires a notice to be given under clause 130AB—20 days, or
(b)  in any other case—10 days.
130AB   Requirement to advise of applications for certain complying development certificates
(1)  This clause applies to a complying development certificate in relation to any of the following development on land in an applicable local government area, other than on land within a residential release area, if the development is to be carried out on a lot that has a boundary within 20 metres of the boundary of another lot on which a dwelling is located:
(a)  development specified under any environmental planning instrument that involves any of the following:
(i)  a new dwelling,
(ii)  an addition to an existing dwelling,
(b)  development specified in Part 7 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the Demolition Code),
(c)  development specified in Division 2 or 7 of Part 2 of State Environmental Planning Policy (Affordable Rental Housing) 2009.
(2)  A certifying authority for an application for a complying development certificate to which this clause applies must not determine the application by issuing a complying development certificate until at least 14 days after the certifying authority has given a notice that complies with this clause to:
(a)  if the development will be on land in a rural or residential zone—the occupier of each dwelling referred to in subclause (1) that is on land in a rural or residential zone, and
(b)  if the certifying authority is not the council for the area in which the development is to be carried out—the council.
(3)  The notice must be in writing and must include the following:
(a)  the name and contact details of the certifying authority,
(b)  a statement that the certifying authority has received an application for a complying development certificate and will determine the application in accordance with the Environmental Planning and Assessment Act 1979,
(c)  the name, address and contact details of the applicant for the complying development certificate,
(d)  the address of the land on which the development is to be carried out,
(e)  a description of the development to which the application relates,
(f)  the date on which the application was received by the certifying authority,
(g)  a statement that, once the application is determined, the council is required to make a copy of the determination available for inspection.
(4)  In this clause:
applicable local government area means any of the local government areas of Ashfield, City of Auburn, City of Bankstown, City of Blacktown, City of Blue Mountains, City of Botany Bay, Burwood, Camden, City of Campbelltown, Canada Bay, City of Canterbury, City of Fairfield, City of Hawkesbury, City of Holroyd, Hornsby, Hunter’s Hill, City of Hurstville, City of Kogarah, Ku-ring-gai, Lane Cove, Leichhardt, City of Liverpool, Manly, Marrickville, Mosman, North Sydney, City of Parramatta, City of Penrith, Pittwater, City of Randwick, City of Rockdale, City of Ryde, Strathfield, Sutherland Shire, City of Sydney, The Hills Shire, Warringah, Waverley, City of Willoughby, Wingecarribee, Wollondilly or Woollahra.
residential release area means any land within:
(a)  an urban release area identified within a local environmental plan that adopts the applicable mandatory provisions of the Standard Instrument, or
(b)  a land release area identified under the Eurobodalla Local Environmental Plan 2012, or
(d)  any area included in Parts 6, 26, 27, 28 and 29 of Schedule 3 to State Environmental Planning Policy (Major Development) 2005.
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)  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)    (Repealed)
(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, 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, and
(e)    (Repealed)
(5), (6)    (Repealed)
130A   Copy of particular documents to be given to NSW Rural Fire Service and council
(1)  If a certifying authority issues a complying development certificate for development on bush fire prone land, the certifying authority must send a copy of the following to the NSW Rural Fire Service:
(a)  the complying development certificate, and
(b)  any associated documentation (including a copy of the application and the certification required under clause 3.36B or 3A.37 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008).
(2)  If the certifying authority is not a council, the certifying authority must also send a copy of the documents mentioned in subclause (1) to the council.
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:
(a1)  that, whether or not any building work is carried out, the building will contain measures that are adequate, in the event of fire, to facilitate the safe egress of persons from the part of the building affected by the change of building use,
(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 requirements that on completion of the building work:
(a)  if the building work involves the reconfiguration of any internal part of the building (being a part that is to be occupied)—the building will contain measures that are adequate, in the event of fire, to facilitate the safe egress of persons from the reconfigured part of the building, and
(b)  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.
132A   (Repealed)
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 (if a fire safety schedule is required under Part 9).
(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)    (Repealed)
(c)  the erection of a temporary structure.
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,
(f)  a statement signed by or on behalf of the principal certifying authority to the effect that all conditions of the relevant complying development certificate that are required to be satisfied before the work commences have been satisfied,
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.
136AB   Notice to neighbours
(1)  A complying development certificate for development on land that is in a category 1 local government area and that is not in a residential release area and that involves:
(a)  a new building, or
(b)  an addition to an existing building, or
(c)  the demolition of a building,
must be issued subject to a condition that the person having the benefit of the complying development certificate must give at least 7 days’ notice in writing of the person’s intention to commence the work authorised by the certificate to the occupier of each dwelling that is located on a lot that has a boundary within 20 metres of the boundary of the lot on which the work is to be carried out.
(2)  A complying development certificate for development on land that is in a category 2 local government area or a residential release area and that involves:
(a)  a new building, or
(b)  an addition to an existing building, or
(c)  the demolition of a building,
must be issued subject to a condition that the person having the benefit of the complying development certificate must give at least 2 days’ notice in writing of the person’s intention to commence the work authorised by the certificate to the occupier of each dwelling that is located on a lot that has a boundary within 20 metres of the boundary of the lot on which the work is to be carried out.
(3)  In this clause:
category 1 local government area means any of the local government areas of Ashfield, City of Auburn, City of Bankstown, City of Blacktown, City of Blue Mountains, City of Botany Bay, Burwood, Camden, City of Campbelltown, Canada Bay, City of Canterbury, City of Fairfield, City of Hawkesbury, City of Holroyd, Hornsby, Hunter’s Hill, City of Hurstville, City of Kogarah, Ku-ring-gai, Lane Cove, Leichhardt, City of Liverpool, Manly, Marrickville, Mosman, North Sydney, City of Parramatta, City of Penrith, Pittwater, City of Randwick, City of Rockdale, City of Ryde, Strathfield, Sutherland Shire, City of Sydney, The Hills Shire, Warringah, Waverley, City of Willoughby, Wingecarribee, Wollondilly or Woollahra.
category 2 local government area means any local government area that is not a category 1 local government area.
residential release area means any land within:
(a)  an urban release area identified within a local environmental plan that adopts the applicable mandatory provisions of the Standard Instrument, or
(b)  a land release area identified under the Eurobodalla Local Environmental Plan 2012, or
(d)  any area included in Parts 6, 26, 27, 28 and 29 of Schedule 3 to State Environmental Planning Policy (Major Development) 2005.
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 458 of the Work Health and Safety Regulation 2011,
(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,
(d)  if the contract indicates that bonded asbestos material or friable asbestos material will be removed to a specified landfill site, the person having the benefit of the complying development certificate must give the principal certifying authority a copy of a receipt from the operator of the landfill site stating that all the asbestos material referred to in the contract has been received by the operator.
(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 Office of Environment and Heritage.
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, structure or work (including any structure or work within a road or rail corridor) on adjoining land, the person having the benefit of the certificate must at the person’s own expense:
(a)  protect and support the building, structure or work from possible damage from the excavation, and
(b)  where necessary, underpin the building, structure or work 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.
136I   Traffic generating development
If an application for a complying development certificate is required to be accompanied by a certificate of Roads and Maritime Services as referred to in clause 4 (1) (k) of Schedule 1, the complying development certificate must be issued subject to a condition that any requirements specified in the certificate of Roads and Maritime Services must be complied with.