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Contents (2000 - 557)
Environmental Planning and Assessment Regulation 2000
Current version for 1 October 2017 to date (accessed 18 November 2017 at 15:22)
Part 6 Division 12
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114A   (Repealed)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,
(g1)  in the case of an application that is accompanied by a biodiversity development assessment report, the reasonable steps taken to obtain the like-for-like biodiversity credits required to be retired under the report to offset the residual impacts on biodiversity values if different biodiversity credits are proposed to be used as offsets in accordance with the variation rules under the Biodiversity Conservation Act 2016,
(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.