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Contents (2000 - 557)
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Environmental Planning and Assessment Regulation 2000
Current version for 15 November 2019 to date (accessed 23 November 2019 at 13:30)
Part 9 Division 8
Division 8 Miscellaneous
187   Modification and supplementation of Building Code of Australia standards
(cf clause 80H of EP&A Regulation 1994)
(1)  This clause applies to development the subject of—
(a)  a development application or an application for a complying development certificate for the change of building use of an existing building where the application does not seek any alteration, enlargement or extension of the building, or
(a1)    (Repealed)
(a2)  a development application or an application for a complying development certificate for the use of a building as an entertainment venue, or
(a3)    (Repealed)
(b)  an application for a construction certificate for building work, other than building work associated with a change of building use referred to in paragraph (a).
(2)  The applicant in relation to development to which this clause applies may lodge with the consent authority or certifying authority an objection—
(a)  that the Building Code of Australia (as applied by or under clause 98 or 136A) does not make appropriate provision with respect to—
(i)  the building in relation to which the change of building use is sought, or
(ia)  the building proposed to be used as an entertainment venue, or
(ib)    (Repealed)
(ii)  the proposed building work, or
(b)  that compliance with any specified provision of the Building Code of Australia (as applied by or under clause 98 or 136A) is unreasonable or unnecessary in the particular circumstances of the case.
Note.
 This clause does not authorise the making of an objection to a condition imposed on a development consent otherwise than by operation of clause 98 or 136A. So if a consent authority requires the provision of specified fire safety equipment, an objection to that requirement cannot be made merely because the requirement happens to be the same as a requirement imposed by the Building Code of Australia. Nor can it be made if the consent authority requires the development to be carried out in accordance with the Building Code of Australia, as the requirement then arises not from the Building Code of Australia (as applied by clause 98 or 136A) but from the Building Code of Australia (as applied by the terms of the condition).
(3)  In the case of an objection with respect to a Category 3 fire safety provision (as applied by or under clause 98 or 136A), the objection—
(a)  must indicate that a similar objection has been made to the Fire Commissioner, and
(b)  must be accompanied by a copy of the Fire Commissioner’s determination of the objection.
(4)  An objection may not be made with respect to a Category 1 fire safety provision (as applied by or under clause 98 or 136A) by an applicant in relation to development the subject of an application referred to in subclause (1)(a) or (a2) if the application has already been determined by the granting of development consent.
(5)  The applicant must specify the grounds of the objection and (in the case of proposed building work) must furnish the consent authority or certifying authority with a copy of the plans and specifications for the building work.
(6)  If the consent authority or certifying authority is satisfied that the objection is well founded, it may do either or both of the following—
(a)  it may exempt the development, either conditionally or unconditionally, from any specified provision of the Building Code of Australia (as applied by or under clause 98 or 136A),
(b)  it may direct that specified requirements are to apply to the proposed building work.
(7)  A consent authority or certifying authority may not take action under this clause except with the concurrence of the Planning Secretary.
(8)  The Planning Secretary—
(a)  may give the consent authority or certifying authority notice that concurrence may be assumed, in relation to any particular class of objections, subject to such conditions as are specified in the notice, and
(b)  may amend any such notice by a further notice given to that consent authority or certifying authority.
(9)  Action taken in accordance with a notice referred to in subclause (8) is as valid as it would be if the consent authority or certifying authority had obtained the concurrence of the Planning Secretary.
(10)  Concurrence is to be assumed if at least 40 days have passed since concurrence was sought and the Planning Secretary has not, within that period, expressly refused concurrence.
(11)  Any exemption or direction given by the consent authority or certifying authority under this clause must be given subject to, and must not be inconsistent with, any conditions to which the concurrence of the Planning Secretary is subject.
(12)  When granting development consent for development the subject of an application referred to in subclause (1)(a) or (a2), the consent authority must ensure that the terms of any condition referred to in subclause (6)(a) and any requirement referred to in subclause (6)(b)—
(a)  have been included in the plans and specifications for the building work or temporary structure, in the case of a condition whose terms are capable of being so included, or
(b)  are included in the conditions attached to the development consent, in the case of a condition whose terms are not capable of being so included.
(13)  When issuing a construction certificate for building work the subject of an application referred to in subclause (1)(b), the certifying authority must ensure that the terms of any condition referred to in subclause (6)(a) and any requirement referred to in subclause (6)(b)—
(a)  have been included in the plans and specifications for the building work, in the case of a condition whose terms are capable of being so included, or
(b)  are included in the conditions attached to the certificate, in the case of a condition whose terms are not capable of being so included.
(14)  Compliance with the requirement that the terms of a condition be included in the plans and specifications for building work or a temporary structure is sufficiently complied with—
(a)  if the plans and specifications are redrawn so as to accord with those terms, or
(b)  if those terms are included by way of an annotation (whether by way of insertion, deletion or alteration) marked on the relevant part of those plans and specifications.
188   Exemption from fire safety standards
(cf clause 80I of EP&A Regulation 1994)
(1)  This clause applies to development the subject of—
(a)  a development application or an application for a complying development certificate for the change of building use of an existing building where the application does not seek any alteration, enlargement or extension of the building, or
(a1)    (Repealed)
(b)  an application for a construction certificate for building work, other than building work associated with a change of building use referred to in paragraph (a).
Note.
 This clause does not authorise the making of an objection to a condition imposed on a development consent otherwise than by operation of clause 98 or 136A. So if a consent authority requires the provision of specified fire safety equipment, an objection to that requirement cannot be made merely because the requirement happens to be the same as a requirement imposed by the Building Code of Australia. Nor can it be made if the consent authority requires the development to be carried out in accordance with the Building Code of Australia, as the requirement then arises not from the Building Code of Australia (as applied by clause 98 or 136A) but from the Building Code of Australia (as applied by the terms of the condition).
(2)  The applicant in relation to development to which this clause applies may lodge with the Fire Commissioner an objection that compliance with any specified Category 3 fire safety provision (as applied by clause 98 or 136A) is unreasonable or unnecessary in the particular circumstances of the case.
(3)  The applicant must specify the grounds of the objection and (in the case of proposed building work) must furnish the Fire Commissioner with a copy of the plans and specifications for the building work.
(4)  If the Fire Commissioner is satisfied that the objection is well founded, the Fire Commissioner may exempt the development, either conditionally or unconditionally, from any specified Category 3 fire safety provision (as applied by clause 98 or 136A).
(5)  When granting development consent for development the subject of an application referred to in subclause (1)(a), a consent authority must ensure that the terms of any condition referred to in subclause (4)—
(a)  have been included in the plans and specifications for the building work, in the case of a condition whose terms are capable of being so included, or
(b)  are included in the conditions attached to the development consent, in the case of a condition whose terms are not capable of being so included.
(6)  When issuing a construction certificate for building work the subject of an application referred to in subclause (1)(b), a certifying authority must ensure that the terms of any condition referred to in subclause (4)—
(a)  have been included in the plans and specifications for the building work, in the case of a condition whose terms are capable of being so included, or
(b)  are included in the conditions attached to the certificate, in the case of a condition whose terms are not capable of being so included.
(7)  Compliance with the requirement that the terms of a condition be included in the plans and specifications for building work is sufficiently complied with—
(a)  if the plans and specifications are redrawn so as to accord with those terms, or
(b)  if those terms are included by way of an annotation (whether by way of insertion, deletion or alteration) marked on the relevant part of those plans and specifications.
189   Fire brigades inspection powers
(cf clause 80J of EP&A Regulation 1994)
For the purposes of section 9.32(1)(b) of the Act, the following provisions are prescribed—
(a)  such of the provisions of Division 2A of Part 6 of the Act as relate to compliance with a fire safety order,
(b)  such of the provisions of clauses 172(1)(b), 177(3)(b), 180(3)(b) and 182(2) as relate to the implementation, maintenance or certification of essential fire safety measures for building premises,
(c)  such of the provisions of Division 7 as relate to fire safety notices, fire exits, doors relating to fire exits and paths of travel to fire exits,
(d)  such of the provisions of Division 7B as relate to the installation of fire sprinkler systems.
190   Offences relating to certain Crown property
(cf clause 80K of EP&A Regulation 1994)
No proceedings may be taken for an offence under this Part with respect to a building—
(a)  that is situated on Crown managed land within the meaning of the Crown Land Management Act 2016, or
(b)  that is a School of Arts or Mechanics Institute,
except with the consent of the Minister given after consultation with the Minister administering the Crown Land Management Act 2016.
190A   Complying development certificates and construction certificates for installation of fire sprinkler systems in residential care facilities for seniors
(1)  A certifying authority must not issue a complying development certificate or a construction certificate for building work that involves the installation of a fire sprinkler system in a residential care facility for seniors unless the certifying authority is satisfied that the system will comply with the Fire Sprinkler Standard within the meaning of Division 7B as in force when the application for the certificate was made.
(2)  In this clause, residential care facility for seniors has the same meaning as in State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004.
190B   Plans and specifications for certain fire safety systems must be kept on site
(1)  The principal contractor for building work must ensure that the most recently endorsed copy of the plans and specifications for any relevant fire safety system for the building that were required, by conditions under clause 136AA or 146B, to be submitted to the principal certifying authority—
(a)  are kept on the site of the building work, and
(b)  are made available for inspection on request by the certifying authority, consent authority, council and Fire and Rescue NSW at the times during which the building work is carried out.
(2)  In this clause—
relevant fire safety system means any of the following—
(a)  a hydraulic fire safety system within the meaning of clause 165,
(b)  a fire detection and alarm system,
(c)  a mechanical ducted smoke control system.