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This is a Bill, not an Act. For current law, see the Acts databases.
Environmental Planning and
Assessment Amendment
(Infrastructure and Other Planning
Reform) Bill 2005
Contents
Page
1 Name of Act 2
2 Com mencem ent 2
3 Amendment of Environmental Planning and Assessment
Act 1979 No 203 2
4 Amendment of other Acts and regulations 2
Schedule 1 Major infrastructure and other projects am endments 3
Schedule 2 Planning instruments am endments 30
Schedule 3 Development consent am endments 46
Schedule 4 Environmental assessment am endments 51
Schedule 5 Enforcement am endments 53
Schedule 6 Minor am endments 67
Schedule 7 Amendment of other Acts and regulation 70
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY, has
finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of NEW
SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2005
New South Wales
Environmental Planning and
Assessment Amendment
(Infrastructure and Other Planning
Reform) Bill 2005
Act No , 2005
An Act to amend the Environmental Planning and Assessment Act 1979 and other
Acts to facilitate infrastructure and other planning reform; and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill as
finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Environmental Planning and Assessment Amendment (Infrastructure and
Other Planning Reform) Bill 2005
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Environmental Planning and Assessment Amendment
(Infrastructure and Other Planning Reform) Act 2005.
2 Commencement
This Act commences on a day or days to be appointed by
proclamation.
3 Amendment of Environmental Planning and Assessment Act 1979
No 203
The Environmental Planning and Assessment Act 1979 is amended as
set out in Schedules 16.
4 Amendment of other Acts and regulations
The Acts and regulations specified in Schedule 7 are amended as set
out in that Schedule.
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Schedule 1 Major infrastructure and other projects
amendments
(Section 3)
[1] Part 3A
Insert after Part 3:
Part 3A Major infrastructure and other projects
Division 1 Preliminary
75A Definitions
In this Part:
approved project means a project to the extent that it is
approved by the Minister under this Part, but does not include
a project for which only approval for a concept plan has been
given.
critical infrastructure project means a project that is a critical
infrastructure project, as referred to in section 75C.
development includes an activity within the meaning of Part 5.
major infrastructure development includes development,
whether or not carried out by a public authority, for the
purposes of roads, railways, pipelines, electricity generation,
electricity or gas transmission or distribution, sewerage
treatment facilities, dams or water reticulation works,
desalination plants, trading ports or other public utility
undertakings.
project means development that is declared under section 75B
to be a project to which this Part applies.
proponent of a project, means the person proposing to carry
out development comprising all or any part of the project, and
includes any person certified by the Minister to be the
proponent.
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75B Projects to which Part applies
(1) General
This Part applies to the carrying out of development that is
declared under this section to be a project to which this Part
applies:
(a) by a State environmental planning policy, or
(b) by order of the Minister published in the Gazette.
The carrying out of particular development, or development for
a program or plan of works or activities, may be so declared.
(2) Kinds of projects
The following kind of development may be declared to be a
project to which this Part applies:
(a) major infrastructure or other development that, in the
opinion of the Minister, is of State or regional
environmental planning significance,
(b) major infrastructure or other development that is an
activity for which the proponent is also the determining
authority (within the meaning of Part 5) and that, in the
opinion of the proponent, would (but for this Part)
require an environmental impact statement to be
obtained under that Part.
(3) Related development
If part of any development is a project to which this Part
applies, the other parts of the development are (subject to
subsection (4)) taken to be a project to which this Part applies.
(4) Limiting declared development
The declaration of a project may be limited to an aspect of
development (such as the construction of a project), to a
particular period of carrying out development or otherwise.
(5) Amendment or revocation of declaration
The declaration of a project may be amended or revoked at any
time (including before or after an approval for the project is
given under this Part).
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75C Critical infrastructure projects
Any development that is declared to be a project to which this
Part applies may also be declared to be a critical infrastructure
project if it is of a category that, in the opinion of the Minister,
is essential for the State for economic, environmental or social
reasons.
Note. In the case of a critical infrastructure project, this Part contains the
following additional provisions:
(a) sections 75K, 75L and 75Q exclude proponent or objector
appeals in respect of the determination of an application for
approval of the project,
(b) section 75R excludes with respect to the project all environmental
planning instruments (other than SEPPs that specifically relate to
the project) and council orders under Division 2A of Part 6,
(c) section 75T excludes third-party appeals against the project under
this Act or other environment protection legislation.
Guidelines with respect to environmental assessment of the project under
section 75F can be tailored to the circumstances of the case.
Division 2 Environmental assessment and approval of
projects
75D Minister's approval required for projects
(1) A person is not to carry out development that is a project to
which this Part applies unless the Minister has approved of the
carrying out of the project under this Part.
(2) The person is to comply with any conditions to which such an
approval is subject.
75E Application for approval of project
(1) The proponent may apply for the approval of the Minister
under this Part to carry out a project.
(2) The application is to:
(a) describe the project, and
(b) contain any other matter required by the
Director-General.
(3) The application is to be lodged with the Director-General.
(4) An application may relate to part only of a project.
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75F Environmental assessment requirements for approval
(1) The Minister may, after consultation with the Minister for the
Environment, publish guidelines in the Gazette with respect to
environmental assessment requirements for the purpose of the
Minister approving projects under this Part (including levels of
assessment and the public authorities and others to be
consulted).
(2) When an application is made for the Minister's approval for a
project, the Director-General is to prepare environmental
assessment requirements having regard to any such relevant
guidelines in respect of the project.
(3) The Director-General is to notify the proponent of the
environmental assessment requirements. The Director-General
may modify those requirements by further notice to the
proponent.
(4) In preparing the environmental assessment requirements, the
Director-General is to consult relevant public authorities and
have regard to the need for the requirements to assess any key
issues raised by those public authorities.
(5) The environmental assessment requirements may require an
environmental assessment to be prepared by or on behalf of the
proponent in the form approved by the Director-General.
(6) The Director-General may require the proponent to include in
an environmental assessment a statement of the commitments
the proponent is prepared to make for environmental
management and mitigation measures on the site.
(7) This section is subject to section 75P.
Note. Section 75P enables the Minister to determine environmental
assessment requirements for approval to carry out the project or any stage
of the project when giving approval to a concept plan for the project under
Division 3.
75G Independent hearing and assessment panels
(1) The Minister may constitute:
(a) a panel of experts, or
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(b) a panel of officers representing the Department and
other relevant public authorities,
to assess any aspect of a project referred to the panel by the
Minister.
(2) The members of a panel of experts are not to be officers of the
Department or of other public authorities having regulatory
functions in connection with the project.
(3) The members of a panel of officers are to be nominated by the
respective chief executive officers of the public authorities that
the Minister nominates to constitute the panel.
(4) For the purposes of an assessment, a panel may receive or hear
submissions from interested persons and submit a report to the
Director-General within the time required by the Minister.
(5) A panel is to exercise its functions in accordance with
arrangements approved by the Minister. However, a panel is
not subject to the direction of the Minister on the findings or
recommendations in its report.
(6) The Department is to provide staff and facilities for the purpose
of enabling a panel to exercise its functions.
75H Environmental assessment and public consultation
(1) The proponent is to submit to the Director-General the
environmental assessment required under this Division for
approval to carry out the project.
(2) If the Director-General considers that the environmental
assessment does not adequately address the environmental
assessment requirements, the Director-General may require the
proponent to submit a revised environmental assessment to
address the matters notified to the proponent.
(3) After the environmental assessment has been accepted by the
Director-General, the Director-General must, in accordance
with any guidelines published by the Minister in the Gazette,
make the environmental assessment publicly available for at
least 30 days.
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(4) During that period, any person (including a public authority)
may make a written submission to the Director-General
concerning the matter.
(5) The Director-General is to provide copies of submissions
received by the Director-General or a report of the issues raised
in those submissions to:
(a) the proponent, and
(b) if the project will require an environment protection
licence under Chapter 3 of the Protection of the
Environment Operations Act 1997--the Department of
Environment and Conservation, and
(c) any other public authority the Director-General
considers appropriate.
(6) The Director-General may require the proponent to submit to
the Director-General:
(a) a response to the issues raised in those submissions, and
(b) a preferred project report that outlines any proposed
changes to the project to minimise its environmental
impact, and
(c) any revised statement of commitments.
(7) If the Director-General considers that significant changes are
proposed to the nature of the project, the Director-General may
require the proponent to make the preferred project report
available to the public.
75I Director-General's environmental assessment report
(1) The Director-General is to give a report on a project to the
Minister for the purposes of the Minister's consideration of the
application for approval to carry out the project.
(2) The Director-General's report is to include:
(a) a copy of the proponent's environmental assessment and
any preferred project report, and
(b) any advice provided by public authorities on the project,
and
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(c) a copy of any report of a panel constituted under section
75G in respect of the project, and
(d) a copy of or reference to the provisions of any State
Environmental Planning Policy that substantially govern
the carrying out of the project, and
(e) except in the case of a critical infrastructure project--a
copy of or reference to the provisions of any
environmental planning instrument that would (but for
this Part) substantially govern the carrying out of the
project and that have been taken into consideration in
the environmental assessment of the project under this
Division, and
(f) any environmental assessment undertaken by the
Director-General or other matter the Director-General
considers appropriate.
75J Giving of approval by Minister to carry out project
(1) If:
(a) the proponent has duly applied to the Minister for
approval under this Part to carry out a project, and
(b) the environmental assessment requirements under this
Division with respect to the project have been complied
with,
the Minister may approve or disapprove of the carrying out of
the project.
(2) The Minister, when deciding whether or not to approve the
carrying out of a project, is to consider:
(a) the Director-General's report on the project and the
reports, advice and recommendations contained in the
report, and
(b) if the proponent is a public authority--any advice
provided by the Minister having portfolio responsibility
for the proponent, and
(c) if the Minister has directed an inquiry be held in
accordance with section 119 with respect to the
project--any findings or recommendations of the
Commission of Inquiry.
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(3) The Minister cannot approve of the carrying out of a project:
(a) that is not a critical infrastructure project, and
(b) that would (but for this Part) be wholly prohibited under
an environmental planning instrument by the operation
of section 76B.
(4) A project may be approved under this Part with such
modifications of the project or on such conditions as the
Minister may determine.
75K Appeals by proponent
(1) This section applies to a project if:
(a) the project is not a critical infrastructure project, and
(b) the proponent is not a public authority, and
(c) the project has not been the subject of an inquiry held in
accordance with section 119 or of a report of a panel of
experts under section 75G, and
(d) but for this Part, the provisions of Part 4 would apply to
the project.
(2) A proponent who is dissatisfied with the determination of the
Minister with respect to an application by the proponent under
this Division may appeal to the Court within 3 months after:
(a) the date on which the proponent received notice of the
determination of the application in accordance with the
regulations, or
(b) the date on which the regulations provide that a pending
application is taken to have been refused for the
purposes only of this section.
(3) If any such appeal is made, each objector to the application
referred to in section 75L is to be given notice by the Minister
of that appeal and is, on application made to the Court in
accordance with rules of court within 28 days after the date of
the notice, entitled to be heard at the hearing of the appeal as if
the objector were a party to the appeal.
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75L Appeals by an objector
(1) This section applies to a project if:
(a) it is not a critical infrastructure project, and
(b) there has been no approval of a concept plan for the
project under Division 3, and
(c) the project has not been the subject of an inquiry held in
accordance with section 119 or of a report of a panel of
experts under section 75G, and
(d) but for this Part, the project would be designated
development to which the provisions of Part 4 would
apply.
(2) For the purposes of this section, an objector is a person who
has made a submission under section 75H by way of objection
to an application for approval under this Division to carry out
a project.
(3) An objector who is dissatisfied with the determination of the
Minister under this Division to give approval to carry out a
project may appeal to the Court within 28 days after the date on
which notice of the determination was given in accordance
with the regulations.
(4) If such an appeal is made, the proponent and the Minister are
to be given notice of the appeal, in accordance with rules of
court, and are entitled to be heard at the hearing of the appeal
as parties to the appeal.
Division 3 Concept plans for certain projects
75M Submission of concept plan for project
(1) The Minister may authorise or require the proponent to submit
a concept plan for a project.
(2) The concept plan is to:
(a) outline the scope of the project and any development
options, and
(b) set out any proposal for the staged implementation of
the project, and
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(c) contain any other matter required by the
Director-General.
A detailed description of the project is not required.
(3) The concept plan is to be lodged with the Director-General.
(4) If an environmental planning instrument requires the
preparation of a development control plan before any particular
or kind of development is carried out on any land, the
obligation may be satisfied for a project by the submission and
approval of a concept plan in respect of the land concerned
(but only if the Minister authorises or requires the submission
of the concept plan).
75N Environmental assessment, panel report, public consultation and
Director-General's report for concept plan
Sections 75F (Environmental assessment requirements for
approval), 75G (Independent hearing and assessment panels),
75H (Environmental assessment and public consultation) and
75I (Director-General's environmental assessment report)
apply, subject to the regulations, with respect to approval for
the concept plan for a project in the same way as they apply
with respect to approval to carry out a project.
75O Giving of approval for concept plan
(1) If:
(a) the proponent submits a concept plan for a project, and
(b) the environmental assessment requirements under this
Division with respect to giving approval for the concept
plan have been complied with,
the Minister may give or refuse to give approval for the concept
plan for the project.
(2) The Minister, when deciding whether or not to give approval
for the concept plan, is to consider:
(a) the Director-General's report on the project and the
reports and recommendations contained in the report,
and
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(b) if the proponent is a public authority--any advice
provided by the Minister having portfolio responsibility
for the proponent, and
(c) if the Minister has directed an inquiry be held in
accordance with section 119 with respect to the
project--any findings or recommendations of the
Commission of Inquiry.
(3) The Minister cannot give approval for the concept plan for a
project:
(a) that is not a critical infrastructure project, and
(b) that would (but for this Part) be wholly prohibited under
an environmental planning instrument by the operation
of section 76B.
(4) Approval for a concept plan may be given under this Division
with such modifications of the project as the Minister may
determine.
75P Determinations with respect to project for which concept plan
approved
(1) When giving an approval for the concept plan for a project, the
Minister may make any (or any combination) of the following
determinations:
(a) the Minister may determine the further environmental
assessment requirements for approval to carry out the
project or any particular stage of the project under this
Part (in which case those requirements have effect for
the purposes of Division 2),
(b) the Minister may determine that approval to carry out
the project or any particular stage of the project is to be
subject to the other provisions of this Act (in which case
the project or that stage of the project ceases to be a
project to which this Part applies),
(c) the Minister may determine that no further
environmental assessment is required for the project or
any particular stage of the project (in which case the
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Minister may, under section 75J, approve or disapprove
of the carrying out of the project or that stage of the
project without further application, environmental
assessment or report under Division 2).
(2) If the Minister determines that approval to carry out the project
or any particular stage of the project is to be subject to the other
provisions of this Act, the following provisions apply:
(a) the determination of a development application for the
project or that stage of the project under Part 4 is to be
generally consistent with the terms of the approval of
the concept plan,
(b) the project or that stage of the project is not integrated
development for the purposes of Part 4,
(c) any further environmental assessment of the project or
that stage of the project under Part 4 or Part 5 is to be
undertaken in accordance with the requirements
determined by the Minister when approving the concept
plan (despite anything to the contrary in that Part),
(d) the Minister may, by order, declare that that stage of the
project (or any part of it) is exempt or complying
development for the purposes of this Act,
(e) the Minister may, by order, declare that that stage of the
project (or any part of it) is not designated development
for the purposes of this Act,
(f) the Minister may, by order, revoke or amend (as the
case requires) the declaration of the project under this
Part.
An order under paragraph (d), (e) or (f) is to be published in the
Gazette and has effect according to its tenor.
75Q Appeal by proponent
(1) This section applies to a project for which a concept plan has
been submitted if:
(a) the project is not a critical infrastructure project, and
(b) the proponent is not a public authority, and
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(c) the project has not been the subject of an inquiry held in
accordance with section 119 or of a report of a panel of
experts under section 75G, and
(d) but for this Part, the provisions of Part 4 would apply to
the project.
(2) A proponent who is dissatisfied with the determination of the
Minister under this Division to refuse to approve the concept
plan for a project (or to modify a concept plan for which
approval is given) may appeal to the Court within 3 months
after:
(a) the date on which the proponent received notice of the
determination in accordance with the regulations, or
(b) the date on which the regulations provide that a pending
application is taken to have been refused for the
purposes only of this section.
(3) If the Court allows the appeal, the Minister is to approve the
concept plan in the manner determined by the Court. The Court
does not have jurisdiction to approve the concept plan or to
make or direct the Minister on any determination that may be
made under section 75P when giving approval for a concept
plan.
Division 4 Application of other provisions of this and
other Acts
75R Application of other provisions of Act
(1) Part 4 and Part 5 do not, except as provided by this Part, apply
to or in respect of an approved project (including the
declaration of the project as a project to which this Part applies
and any approval or other requirement under this Part for the
project).
(2) Part 3 and State environmental planning policies apply to:
(a) the declaration of a project as a project to which this
Part applies or as a critical infrastructure project, and
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(b) the carrying out of a project, but (in the case of a critical
infrastructure project) only to the extent that the
provisions of such a policy expressly provide that they
apply to and in respect of the particular project.
(3) Environmental planning instruments (other than State
environmental planning policies) do not apply to or in respect
of an approved project.
Note. Sections 75J and 75O provide that a project (other than a critical
infrastructure project) or a concept plan for such a project cannot be
approved under this Part if (but for this Part) it would be development
prohibited under any environmental planning instrument. See also section
75I (2) (e).
(4) Divisions 6 and 6A of Part 4 apply to projects (and the giving
of approval for the carrying out of projects under this Part) in
the same way as they apply to development and the granting of
consent to the carrying out of development under Part 4,
subject to any necessary modifications and any modifications
prescribed by the regulations. However, a condition cannot be
imposed under section 94, 94A or 94F unless that section
would have applied if this Part did not apply to the project and
a development consent were granted.
(5) Division 2A of Part 6 applies to a critical infrastructure project
only to the extent that the regulations so provide.
75S Erection and occupation of buildings and subdivision of land
(1) Section 81A applies to an approved project (other than a
critical infrastructure project) in the same way as it applies to
development subject to a development consent, subject to any
necessary modifications and any modifications prescribed by
the regulations. For that purpose, a reference in Part 4A to a
development consent includes a reference to an approval of a
project under this Part.
(2) However:
(a) section 81A does not apply unless that section would
have applied if this Part did not apply to the project, and
(b) section 81A applies to a critical infrastructure project if
the Minister when giving approval under this Part
makes it a condition of that approval that section 81A
applies.
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(3) Sections 116B and 116G apply to an approved project, but the
other provisions of Part 5A do not apply.
75T Third-party appeals--critical infrastructure projects
(1) This section applies to:
(a) proceedings in the Court (and orders made by the Court)
under Division 3 of Part 6, and
(b) proceedings in the Court (and orders made by the Court)
under section 252 or 253 of the Protection of the
Environment Operations Act 1997, and
(c) proceedings in the Court (and orders made by the Court)
under section 20 (2) of the Land and Environment
Court Act 1979.
(2) Proceedings in the Court (and orders made by the Court)
cannot be taken or made, except on application made or
approved by the Minister:
(a) to remedy or restrain a breach of this Act (within the
meaning of Division 3 of Part 6) arising under this Part
in respect of a critical infrastructure project, including
the declaration of the project as a project (and a critical
infrastructure project) to which this Part applies and any
approval or other requirement under this Part for the
project, or
(b) to enforce any conditions of an approval under this Part
for a critical infrastructure project, or
(c) to remedy or restrain a breach of this or any other Act
arising in respect of the giving of an authorisation of a
kind referred to in section 75V (1) for a critical
infrastructure project (or in respect of the conditions of
such an authorisation).
75U Approvals etc legislation that does not apply
(1) The following authorisations are not required for an approved
project (and accordingly the provisions of any Act that prohibit
an activity without such an authority do not apply):
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the concurrence under Part 3 of the Coastal Protection
(a)
Act 1979 of the Minister administering that Part of the
Act,
a permit under section 201, 205 or 219 of the Fisheries
(b)
Management Act 1994,
(c) an approval under Part 4, or an excavation permit under
section 139, of the Heritage Act 1977,
(d) a permit under section 87 or a consent under section 90
of the National Parks and Wildlife Act 1974,
an authorisation referred to in section 12 of the Native
(e)
Vegetation Act 2003 (or under any Act to be repealed by
that Act) to clear native vegetation,
a permit under Part 3A of the Rivers and Foreshores
(f)
Improvement Act 1948,
(g) a bush fire safety authority under section 100B of the
Rural Fires Act 1997,
(h) a water use approval under section 89, a water
management work approval under section 90 or an
activity approval under section 91 of the Water
Management Act 2000.
(2) Division 8 of Part 6 of the Heritage Act 1977 does not apply to
prevent or interfere with the carrying out of an approved
project.
(3) The following orders or notices cannot be made or given so as
to prevent or interfere with the carrying out of an approved
critical infrastructure project:
(a) an interim protection order (within the meaning of the
National Parks and Wildlife Act 1974 or the Threatened
Species Conservation Act 1995),
(b) an order under Division 1 (Stop work orders) of Part 6A
of the National Parks and Wildlife Act 1974, Division 1
(Stop work orders) of Part 7 of the Threatened Species
Conservation Act 1995 or Division 7 (Stop work orders)
of Part 7A of the Fisheries Management Act 1994,
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(c) an environment protection notice under Chapter 4 of the
Protection of the Environment Operations Act 1997,
an order under section 124 of the Local Government
(d)
Act 1993.
Note. Under the National Parks and Wildlife Act 1974, actions that are
essential for carrying out an approved project provide the same defence
to actions relating to harm to native fauna (and threatened species) as a
development consent under Part 4, or environmental assessment under
Part 5, of this Act provide.
75V Approvals etc legislation that must be applied consistently
(1) An authorisation of the following kind cannot be refused if it
is necessary for carrying out an approved project and is to be
substantially consistent with the approval under this Part:
an aquaculture permit under section 144 of the Fisheries
(a)
Management Act 1994,
an approval under section 15 of the Mine Subsidence
(b)
Compensation Act 1961,
a mining lease under the Mining Act 1992,
(c)
a production lease under the Petroleum (Onshore)
(d)
Act 1991,
(e) an environment protection licence under Chapter 3 of
the Protection of the Environment Operations Act 1997
(for any of the purposes referred to in section 43 of that
Act),
a consent under section 138 of the Roads Act 1993.
(f)
(2) If:
(a) the Minister determines when giving approval for a
concept plan under section 75P that approval to carry
out the project or any particular stage of the project is to
be subject to the other provisions of this Act, and
(b) development consent to carry out the project or that
stage of the project is given under Part 4,
an authorisation of the kind referred to in subsection (1) or
section 75U (1) cannot be refused if it is necessary for carrying
out the project or that stage of the project and is to be
substantially consistent with the development consent.
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(3) This section does not apply to or in respect of:
(a) an application for the renewal of an authorisation or a
renewed authorisation, or
(b) an application for a further authorisation or a further
authorisation following the expiry or lapsing of an
authorisation, or
(c) in the case of an environment protection licence under
Chapter 3 of the Protection of the Environment
Operations Act 1997--any period after the first review
of the licence under section 78 of that Act.
(4) A reference in this section to an authorisation or approval
includes a reference to any conditions of the authorisation or
approval.
(5) This section applies to a person, court or tribunal that deals
with an objection, appeal or review conferred on a person in
relation to an authorisation in the same was as it applies to the
person giving the authorisation.
Division 5 Miscellaneous
75W Modification of Minister's approval
(1) In this section:
Minister's approval means an approval to carry out a project
under this Part, and includes an approval of a concept plan.
modification of approval means changing the terms of a
Minister's approval, including:
(a) revoking or varying a condition of the approval or
imposing an additional condition of the approval, and
(b) changing the terms of any determination made by the
Minister under Division 3 in connection with the
approval.
(2) The proponent may request the Minister to modify the
Minister's approval for a project. The Minister's approval for
a modification is not required if the project as modified will be
consistent with the existing approval under this Part.
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(3) The request for the Minister's approval is to be lodged with the
Director-General. The Director-General may notify the
proponent of environmental assessment requirements with
respect to the proposed modification that the proponent must
comply with before the matter will be considered by the
Minister.
(4) The Minister may modify the approval (with or without
conditions) or disapprove of the modification.
(5) The proponent of a project to which section 75K applies who
is dissatisfied with the determination of a request under this
section with respect to the project (or with the failure of the
Minister to determine the request within 40 days after it is
made) may, within the time prescribed by the regulations,
appeal to the Court. The Court may determine any such appeal.
(6) Subsection (5) does not apply to a request to modify:
(a) an approval granted by or as directed by the Court on
appeal, or
(b) a determination made by the Minister under Division 3
in connection with the approval of a concept plan.
(7) This section does not limit the circumstances in which the
Minister may modify a determination made by the Minister
under Division 3 in connection with the approval of a concept
plan.
75X Miscellaneous provisions relating to approvals under this Part
(1) If the proponent of a project (or proposed project) is the
Minister or the corporation constituted by section 8 (1), the
project must be the subject of an inquiry held in accordance
with section 119 or of a report of a panel of experts under
section 75G.
(2) The following documents under this Part in relation to a project
are to be made publicly available by the Director-General:
(a) applications to carry out projects,
(b) environmental assessment requirements for a project
determined by the Director-General or the Minister,
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(c) environmental assessment reports of the Director-
General to the Minister,
(d) approvals to carry out projects given by the Minister,
(e) concept plans submitted for the Minister's approval (and
approvals of concept plans),
(f) requests for modifications of approvals given by the
Minister and any modifications made by the Minister.
(3) The Minister may, but is not required to, give reasons to the
proponent for:
(a) any disapproval, or conditions or modifications, of a
project, or
(b) any disapproval, or modifications of, a concept plan for
a project, or
(c) any conditions of approval of a modification of the
approval of a project.
(4) The validity of an approval or other decision under this Part
cannot be questioned in any legal proceedings in which the
decision may be challenged except those commenced in the
Court within 3 months after public notice of the decision was
given.
(5) The only requirement of this Part that is mandatory in
connection with the validity of an approval of a project or of a
concept plan for a project is a requirement that an
environmental assessment with respect to the project is made
publicly available under section 75H (or under that section as
applied by section 75N). This subsection does not affect the
operation of section 75T in relation to a critical infrastructure
project.
75Y Lapsing of approvals
(1) An approval under this Part may be subject to a condition that
it lapses on a specified date unless specified action with respect
to the approval has been taken (such as the commencement of
work on the project or the submission of an application for
approval to carry out a project for which concept approval has
been given).
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(2) Any such condition may be modified under this Part to extend
the lapsing period. The Minister is to review the approval
before extending the lapsing period and may make other
modifications to the approval (whether or not requested by the
proponent).
75Z Regulations for purposes of Part
The regulations may make provision for or with respect to the
approval of projects (and concept plans for projects) under this
Part and to approved projects (and concept plans), including:
(a) prescribing time limits for dealing with applications or
other matters under this Part and deeming acceptance or
rejection of applications or other matters if those time
limits are not complied with, and
(b) requiring owners of land on which projects are proposed
to be carried out to consent to applications for approvals
under this Part, and
(c) providing for public exhibition, notification and public
registers of applications for approvals under this Part (or
for the modification of approvals) and of the
determination of those applications, and
(d) the fees for applications and the exercise of functions
under this Part.
75ZA Transitional arrangements
(1) Development may be declared to be a project to which this Part
applies even though action has been taken under Part 4 or
Part 5 before the declaration (whether before or after the
commencement of this Part) for the purposes of authorising the
carrying out of the development under this Act.
(2) However, on the declaration being made, any development
consent under Part 4 or approval under Part 5 that authorises
the carrying out of the development ceases to have effect. The
consent or approval is revived if the declaration is subsequently
revoked without any approval of the project under this Part.
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(3) If the declaration of a project under this Part is revoked after
approval has been given under this Part to carry out the project,
the approval is (subject to the regulations) taken to be a
development consent for the project granted under Part 4.
[2] Section 4 Definitions
Omit the definitions of local development and State significant
development from section 4 (1).
[3] Section 23 Delegation
Insert after section 23 (1) (c):
a development corporation under the Growth Centres
(c1)
(Development Corporations) Act 1974 or an officer or
employee of any such corporation for the purposes of
that Act,
(c2) any other public authority or an officer or employee of
any other public authority,
[4] Section 23 (8) (a1)
Insert after section 23 (8) (a):
(a1) the function of the Minister under Part 3A of
determining whether to approve the carrying out of a
project or the concept plan for a project, or
[5] Section 23 (8) (b)
Omit ", 88A, 89" and ", by Division 4 of Part 5".
[6] Section 72A Making of application
Omit "or sections 88A and 89" wherever occurring in section 72A (2).
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[7] Section 72I Application of Division
Insert at the end of the section:
(2) This Division also applies in respect of applications and
approvals under Part 3A, and references to a development
application, a consent authority or a consent are to be construed
accordingly.
[8] Section 76A Development that needs consent
Omit section 76A (3), (4), (6) (a), (7), (8) and (9).
[9] Section 76A (5)
Omit "local".
[10] Section 77 Application of Division
Omit paragraph (a) of the note to the section.
[11] Section 79C Evaluation
Insert at the end of section 79C (1):
Note. See section 75P (2) (a) for circumstances in which determination
of development application to be generally consistent with approved
concept plan for a project under Part 3A.
[12] Section 82A Review of determination
Omit the note to section 82A (1).
[13] Part 4, Division 4 Additional procedures concerning State significant
development
Omit the Division.
[14] Section 91A Development that is integrated development
Omit "local" from section 91A (1).
[15] Section 92 State significant development that is integrated development
Omit the section.
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[16] Section 95A Extension of lapsing period for 1 year
Omit ", except where the application is made in respect of a consent granted
by the Minister under section 88A or 89," from section 95A (3).
[17] Section 95B Extension of lapsing period for consent for State significant
development
Omit the section.
[18] Section 96 Modification of consents---generally
Omit ", (6A)" from section 96 (1) and "or (6A)" from section 96 (7).
[19] Section 96 (6)
Omit "Except in the case of State significant development, an".
Insert instead "An".
[20] Section 96 (6A)
Omit the subsection.
[21] Section 110 Definitions
Omit "under Division 4" from section 110 (2).
Insert instead "under Part 3A".
[22] Section 110D Transitional---amendment of list of vulnerable species
Omit section 110D (3) and (4).
[23] Section 112 Decision of determining authority in relation to certain
activities
Omit section 112 (1) (c1).
[24] Section 112 (6)
Insert "(other than Part 3A)" after "of this Act".
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[25] Section 112 (6A)
Omit the subsection.
[26] Section 113 Publicity and examination of environmental impact
statements
Omit "or Division 4 applies" from section 113 (5).
[27] Part 5, Division 4 Minister administering this Act to be approving
authority instead of proponent where EIS prepared
Omit the Division.
[28] Section 115P Approval of Minister administering this Act required for
designated fishing activity where Fisheries Minister is or is declared to
be proponent
Omit section 115P (3). Insert instead:
(3) The regulations may make provisions for or with respect to
approvals under this section of the Minister administering this
Act.
[29] Section 115R Application of other provisions of this Act
Insert after section 115R (3):
(3A) A designated fishing activity cannot be declared to be a project
to which Part 3A applies.
[30] Section 119 Public inquiry
Insert at the end of section 119 (1) (d):
, or
(e) all or any of the environmental aspects of a project
under Part 3A.
[31] Section 158 Exclusion of personal liability
Insert after section 158 (d):
(d1) a member of a panel constituted under section 75G, or
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[32] Section 158
Insert "a panel member," after "the Commissioner of Inquiry,".
[33] Schedule 6 Savings, transitional and other provisions
Insert in appropriate Divisional order (and with appropriate clause numbers)
in the Part of the Schedule inserted by Schedule 6 to this Act:
Division 2 Major infrastructure and other projects
amendments
Pending or previous matters under Division 4 of Part 5
(1) Despite its repeal by Schedule 1 to the 2005 Amending Act,
Division 4 of Part 5 of this Act continues to apply to and in
respect of the carrying out of any activity for which the
Minister's approval under that Division was sought before its
repeal.
(2) If the activity is a project to which Part 3A of this Act applies:
(a) subclause (1) applies to the activity (unless the
instrument that declares it a project otherwise provides),
and
(b) Part 3A of this Act does not apply to the activity while
Division 4 of Part 5 of this Act continues to apply to the
activity (subject to subclause (3)).
(3) The approval of the Minister for an activity that was given
under Division 4 of Part 5 of this Act before its repeal (or under
that Division as continued by subclause (1)) is taken to be an
approval under Part 3A of this Act, and that Part (sections 75U
and 75V excepted) applies accordingly.
(4) Until regulations are made under section 115P (3) (as
substituted by the 2005 Amending Act), the provisions of
Division 4 of Part 5 of this Act continue to apply (with
necessary modifications) to approvals under that section of the
Minister administering this Act.
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State significant development matters
(1) If a development application for State significant development
is pending on the commencement of Part 3A of this Act, the
application is to be determined (unless withdrawn by the
applicant) as if the amendments made to this Act by Schedule 1
to the 2005 Amending Act had not been made.
(2) A reference in any Act or instrument to State significant
development within the meaning of this Act is taken to be a
reference to a project to which Part 3A of this Act applies.
Special heritage provision with respect to Opera House
(1) Section 75U (as inserted by the 2005 Amending Act), in so far
as it excludes the requirement for an approval under Part 4 of
the Heritage Act 1977, does not apply to the carrying out of any
development in connection with the Opera House that is a
project to which Part 3A applies.
(2) In that case, section 75V applies instead as if an approval under
Part 4 of the Heritage Act 1977 were included in section
75V (1).
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Schedule 2 Planning instruments amendments
(Section 3)
[1] Section 4 Definitions
Insert in alphabetical order in section 4 (1):
development control plan means a development control plan
prepared (or taken to have been prepared) under Division 6 of
Part 3.
[2] Section 26 Contents of environmental planning instruments
Insert at the end of the section:
(4) An environmental planning instrument that makes provision for
or with respect to protecting or preserving trees or other
vegetation may make provision:
(a) for development control plans to specify the species or
kinds of trees or other vegetation included in or
excluded from the relevant provisions, and
(b) for the grant of permission to remove or otherwise affect
trees or other vegetation, and for a refusal to grant
permission to be treated as a refusal or failure to grant
development consent under and for the purposes of
Part 4.
[3] Section 33 Model provisions
Omit the section.
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[4] Sections 33A33C
Insert after section 33:
33A Standardisation of local and other environmental planning
instruments
(1) The Governor may, by order published in the Gazette, prescribe
the standard form and content of local environmental plans or
other environmental planning instruments (a standard
instrument).
(2) An environmental planning instrument may be made in the
form of:
(a) a declaration that the applicable mandatory provisions
of a standard instrument are adopted, and
(b) the prescription of the matters required to be prescribed
for the purposes of the application of the mandatory
provisions of the standard instrument (such as the
adoption of land zoning or other maps), and
(c) the prescription of any other matters permitted to be
prescribed by an environmental planning instrument,
including non-mandatory provisions of the standard
instrument (with or without modification) or additional
provisions.
(3) When an environmental planning instrument is made with such
a declaration, the instrument has the form and content of the
applicable mandatory provisions of the standard instrument and
the matters so prescribed. Any draft of the instrument that is
exhibited under this Act is to set out in full the provisions that
are adopted.
(4) If the mandatory provisions of a standard instrument so adopted
are amended by a further order under subsection (1) after they
are adopted, the environmental planning instrument is taken
(without further amendment) to adopt the amended provisions
of the standard instrument on and from the date the
amendment to the standard instrument takes effect.
(5) The order that amends a standard instrument may make
provision of a savings or transitional nature consequent on the
amendment of the standard instrument.
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(6) Where a standard instrument has been adopted, the provisions
of the environmental planning instrument (other than the
mandatory provisions of the adopted standard instrument) may
be amended from time to time by another environmental
planning instrument or in accordance with any Act.
(7) A standard instrument may:
(a) provide that a provision is a mandatory provision only
in the circumstances specified in the instrument, and
(b) contain requirements or guidance as to the form or
content of a non-mandatory provision.
(8) The adoption of the provisions of a standard instrument in an
environmental planning instrument is taken to be a matter of
State environmental planning significance for the purposes of
this Act.
(9) Subject to this Act and the regulations, the form and
subject-matter of an environmental planning instrument or draft
instrument is (if there is no applicable standard instrument) to
be as determined by the Minister.
(10) In this section:
amend includes alter or vary.
form includes structure.
33B Staged repeal and review of environmental planning instruments
(1) In order to facilitate the staged implementation of standard
instruments and the periodic review of existing instruments, the
Minister may, by order published in the Gazette, establish a
staged repeal program for existing environmental planning
instruments.
(2) The staged repeal program may include provision for or with
respect to the following:
(a) the repeal of designated environmental planning
instruments at specified times during the period of the
program,
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(b) requirements for the preparation and making of
replacement instruments (including the times by which
draft replacement instruments are to be submitted to the
Director-General or the Minister),
(c) the postponement of the repeal of particular instruments
when the making of a replacement instrument is
delayed,
(d) the periodic review by a council of environmental
planning instruments (other than State environmental
planning policies and regional environmental plans)
applying in its area and the submission of reports of
each review to the Director-General.
(3) At the time specified by the staged repeal program for the
repeal of a designated environmental planning instrument, the
instrument is repealed by the operation of this section.
(4) The Minister may, by order published in the Gazette, make a
local environmental plan to take effect on the repeal of an
instrument under this section pending the making of a
replacement instrument in accordance with this Act. Any such
plan made by the Minister is to adopt the mandatory provisions
of a standard instrument (with the prescriptions the Minister
considers necessary in the particular circumstances).
(5) For the purposes of subsection (4):
(a) an order making a plan under that subsection is not
required to comply with other requirements for the
making of an environmental planning instrument, and
(b) public notice is to be given of the proposed plan for
such period as the Minister considers appropriate and
submissions invited on the proposed plan during that
period, and
(c) the council is to provide the Minister, when requested,
with copies of any draft plans, maps or other relevant
documents prepared or held by the council.
The Minister may direct the council to pay to the
Director-General such amount as the Director-General
determines will meet the reasonable costs incurred on behalf of
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the Minister by the Department for the purposes of making the
plan under subsection (4).
Note. See section 118 (1A) in relation to the power to appoint an
administrator to exercise plan-making functions when a council fails to
comply with the requirements of the staged repeal program for the
preparation or making of a replacement instrument.
33C Public access to environmental planning instruments and related
documents
For the purpose of facilitating electronic or other public access
to environmental planning instruments and any development
control plans, contributions plans or other documents under this
Act:
(a) the Minister may determine standard technical
requirements with respect to the preparation of those
instruments, plans or other documents and of the maps
or other documents that are referred to in (or adopted
under) them, and
(b) a council is to provide the Director-General, when
requested, with copies and electronic files (in a specified
format) of any such instruments, plans, maps or other
documents prepared or held by the council.
[5] Section 36 Inconsistency between instruments
Omit section 36 (1), (2) and (3). Insert instead:
(1) In the event of an inconsistency between environmental
planning instruments and unless otherwise provided:
(a) there is a general presumption that a State
environmental planning policy prevails over a regional
environmental plan or local environmental plan made
before or after the policy, and
(b) there is a general presumption that a regional
environmental plan prevails over a local environmental
plan made before or after the regional environmental
plan, and
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(c) the general presumptions of the law as to when an Act
prevails over another Act apply to when one kind of
environmental planning instrument prevails over another
environmental planning instrument of the same kind.
[6] Section 38 Format of State environmental planning policies
Omit the section.
[7] Section 51A Development control plans
Omit the section.
[8] Section 52 Format of regional environmental plan or draft plan
Omit the section.
[9] Section 65 Certificate of Director-General
Insert after section 65 (1):
(1A) A certificate is not to be issued under this section unless the
Director-General is satisfied that the draft local environmental
plan has been prepared in accordance with any applicable
standard instrument under section 33A. This subsection does
not limit the grounds on which a certificate may be refused or
the draft plan may be required to be amended under this
section.
Note. Section 117 also empowers the Minister to give directions as to the
principles to be observed in the preparation of, or the provisions to be
included in, draft local environmental plans.
[10] Section 66 Public exhibition of draft local environmental plan
Omit section 66 (1) (b) (ii) and (iii). Insert instead:
(ii) a copy of any standard instrument,
environmental planning instrument or direction
under section 117 that substantially governs the
content and operation of the draft local
environmental plan (or provide for access to
such a copy), and
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(iii) a statement to the effect that any such standard
instrument, environmental planning instrument
or direction substantially governs the content and
operation of the draft local environmental plan
and that any submissions made pursuant to
section 67 should be made having regard to that
fact,
[11] Section 68 Consideration of submissions
Insert after section 68 (8):
(9) After a draft local environmental plan has been submitted to the
Director-General under this section:
(a) the council and the Director-General may (on one or
more occasions) agree to the council making changes to
the draft plan and resubmitting it under this section, or
(b) the Director-General may (on one or more occasions)
return the draft plan so that the council can make
changes to accord with any applicable standard
instrument under section 33A or to take into account
any directions under section 117.
This subsection applies whether or not a report under
section 69 has been furnished in respect of the draft plan.
[12] Section 69 Report by Director-General
Insert at the end of the section:
(2) The Director-General is not to furnish a report to the Minister
under this section unless the Director-General is satisfied that
the draft local environmental plan has been prepared in
accordance with any applicable standard instrument under
section 33A. This subsection does not limit the matters that the
Director-General is required to consider for the purposes of a
report.
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[13] Section 71 Format of local environmental plan or draft plan
Omit the section.
[14] Section 72 Development control plans
Omit the section.
[15] Section 73A
Insert after section 73:
73A Minor amendments of environmental planning instruments
An amending environmental planning instrument may be made
under this Part without compliance with the provisions of this
Part relating to the conditions precedent to the making of the
instrument if the instrument, if made, would amend or repeal a
provision of a principal instrument in order to do any one or
more of the following:
(a) correct an obvious error in the principal instrument
consisting of a misdescription, the inconsistent
numbering of provisions, a wrong cross-reference, a
spelling error, a grammatical mistake, the insertion of
obviously missing words, the removal of obviously
unnecessary words or a formatting error,
(b) address matters in the principal instrument that are of a
consequential, transitional, machinery or other minor
nature.
[16] Section 74A
Insert after section 74:
74A Application of Division
This Division is subject to sections 33A and 33B.
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[17] Part 3, Division 6
Insert after Division 5 of Part 3:
Division 6 Development control plans
74B Definition
(1) In this Division:
relevant planning authority means:
(a) in relation to local environmental plans applying to land
in (or development in) a local government area--the
council of the area, and
(b) in relation to other environmental planning instruments
(or development in the area to which they apply)--the
Director-General.
(2) A reference in this Division to an environmental planning
instrument includes a reference to any such draft instrument.
74C Preparation of development control plans
(1) The relevant planning authority may prepare a development
control plan (or cause such a plan to be prepared) if it considers
it necessary or desirable:
(a) to make more detailed provision with respect to
development to achieve the purpose of an
environmental planning instrument applying to the land
concerned, or
(b) to identify development as advertised development (so
as to make additional but not inconsistent requirements
to those imposed by the regulations in relation to
development applications), or
(c) to provide for (or exclude) public or particular
advertising or notification of any of the following:
(i) a development application for specified
d e v e lo p m e n t (oth er t h a n designate d
development or advertised development),
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(ii) a request for the review of a determination of a
development application where the applicant for
review makes amendments to the development
described in the original development
application,
(iii) an application for the modification of a
development consent for specified development
(including advertised development but not
designated development),
(iv) an application for a complying development
certificate, or
(d) in the case of a council--to specify criteria (in addition
to but not inconsistent with any criteria prescribed by
the regulations) that the council is to take into
consideration in determining whether or not to give an
order under Division 2A of Part 6, or
(e) to make provision for anything permitted by this Act to
be prescribed by a development control plan.
Note. See for example section 26 (4) (a).
(2) Only one development control plan made by the same relevant
planning authority may apply in respect of the same land. This
subsection does not apply to:
(a) a plan prepared for the purposes of subsection (1) (d) or
for any other purpose prescribed by the regulations, or
(b) a plan prepared for the purpose of amending an existing
plan.
If this subsection is not complied with, all the development
control plans concerned have no effect.
Note. A planning authority may prepare one development control plan for
the whole of its area or one plan for each precinct or locality in its area, or
prepare one plan for a site (and exclude that site from the area to which
other plans apply).
(3) A development control plan may adopt by reference the
provisions of another development control plan.
(4) A development control plan may amend, substitute or revoke
another development control plan.
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(5) A provision of a development control plan (whenever made)
has no effect to the extent that:
(a) it is the same or substantially the same as the provision
of an environmental planning instrument applying to the
same land, or
(b) it is inconsistent with a provision of any such instrument
or its application prevents compliance with a provision
of any such instrument.
74D Development control plans required or authorised by
environmental planning instruments
(1) An environmental planning instrument may require or permit
a development control plan to be prepared before any particular
development or kind of development may be carried out (and
make provision with respect to the preparation and content of
any such plan).
(2) Any such development control plan may outline the
development of all the land to which it applies.
(3) Any such development control plan may be prepared (and
submitted to the relevant planning authority) by the owners of
the land to which it applies or by such percentage of those
owners as the environmental planning instrument concerned
allows. A person authorised by those owners may act on their
behalf for the purposes of this subsection.
(4) The relevant planning authority may make a development
control plan submitted to it under this section, including with
such changes as it thinks fit.
(5) If the relevant planning authority refuses to make a
development control plan submitted to it under this section (or
delays by more than 60 days to make a decision on whether to
make the plan):
(a) the owners may make a development application despite
the requirement of the environmental planning
instrument concerned for the preparation of a
development control plan, or
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(b) the Minister may act in the place of the relevant
planning authority to make the plan (with or without
modification), but only if the environmental planning
instrument concerned authorises the Minister to do so.
(6) The regulations may extend the period of 60 days referred to in
subsection (5) in connection with any failure by the owners to
provide further information required by the relevant planning
authority for the purposes of making the plan.
Note. Section 75M provides that a concept plan may be submitted for a
project to which Part 3A applies as an alternative to a development control
plan required by an environmental planning instrument. Section 83C
provides that a staged development application may be made for
development requiring consent under Part 4 as an alternative to a
development control plan required by an environmental planning
instrument.
74E Miscellaneous provisions relating to development control plans
(1) The regulations may make provision for or with respect to
development control plans, including:
(a) the form, structure and subject-matter of development
control plans, and
(b) the procedures for the preparation, public exhibition,
making, amendment and repeal of development control
plans, and
(c) the fees payable to the relevant planning authority by
owners submitting draft development control plans
under section 74D.
(2) The staged repeal program under section 33B may be extended
to development control plans, and for that purpose a reference
in that section to an environmental planning instrument is taken
to include a reference to a development control plan.
(3) An environmental planning instrument may exclude or modify
the application of development control plans in respect of land
to which the instrument applies (whether the plan was prepared
before or after the making of the instrument).
(4) A development control plan must be available for public
inspection (without charge):
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(a) at the principal office of the relevant planning authority
that prepared the plan, and
(b) in such other manner as is prescribed by the regulations.
[18] Sections 82A (4) (a), 96 (1A) (c) and (2) (c), 96AA (1) (b) and 121F
Omit "under section 72" wherever occurring.
[19] Section 117 Directions by Minister
Insert after section 117 (2):
(2A) A direction under subsection (2):
(a) may be given to a particular council or to councils
generally, and
(b) may require the inclusion in draft plans of provisions to
achieve or give effect to particular principles, aims,
objectives or policies, and
(c) may require draft plans to be strictly consistent or
substantially consistent with the terms of the direction
(or provide for the circumstances in which an
inconsistency can be justified).
Any such direction may be given to councils generally by its
publication in the Gazette or on a website maintained by the
Department (or both).
[20] Section 117 (5)
Insert after section 117 (4):
(5) A local environmental plan (or any draft or purported plan)
cannot in any court proceedings be challenged, reviewed, called
into question, prevented from being made or otherwise affected
on the basis of anything in a direction under subsection (1)
or (2).
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[21] Section 118 Appointment of environmental planning administrator
Insert after section 118 (1):
(1A) In addition to the circumstances in which an appointment may
be made under subsection (1), the Minister may appoint a
person under that subsection to administer the functions of the
council with respect to the making of local environmental plans
if the council fails to comply with the requirements of the
staged repeal program under section 33B with respect to the
preparation or making of a replacement local environmental
plan.
[22] Schedule 6 Savings, transitional and other provisions
Insert in appropriate Divisional order (and with appropriate clause numbers)
in the Part of the Schedule inserted by Schedule 6 to this Act:
Division 3 Planning instruments amendments
Review of SEPPs and REPs
(1) The Minister may, by order published in the Gazette, transfer
any provisions of State environmental planning policies or
regional environmental plans (with or without modification) to
the principal local environmental plans for the local
government areas to which the existing provisions apply.
(2) Subclause (1) does not prevent an environmental planning
instrument being made to transfer any of those existing
provisions in respect of a particular local area.
(3) The transfer of any of those existing provisions is taken to be
matter of State environmental planning significance for the
purposes of this Act.
Standard instruments
The Director-General may issue a certificate under section 65
or furnish a report under section 69 (despite sections 65 (1A)
and 69 (2), as inserted by the 2005 Amending Act) if the
Director-General is satisfied that:
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(a) significant council resources have been expended in the
preparation of the draft instrument before the
prescription of the relevant standard instrument, or
(b) the draft instrument makes a necessary amendment of a
principal environmental planning instrument made
before the prescription of the relevant standard
instrument, or a necessary amendment of an instrument
referred to in paragraph (a),
and the Director-General is satisfied that satisfactory
arrangements have been made for the making of a replacement
instrument in accordance with the relevant standard instrument.
Model provisions
(1) Model provisions made under section 33 (as in force
immediately before its repeal by the 2005 Amending Act)
continue in force for the purposes of any existing
environmental planning instruments that adopt those model
provisions.
(2) The Minister may, by order published in the Gazette, amend or
revoke any of those model provisions, and section 33 (2) (as so
in force) applies accordingly.
Development control plans
(1) A development control plan made under section 51A or 72 and
in force immediately before the repeal of that section by the
2005 Amending Act is taken to be a development control plan
made under Division 6 of Part 3 (as inserted by that Act).
(2) Section 74C (as inserted by the 2005 Amending Act) does not
render invalid any provision of a development control plan that
is continued in force by subclause (1) during the period until a
development control plan is made under section 74C in respect
of the land concerned.
(3) Anything done under section 51A or 72 immediately before its
repeal by the 2005 Amending Act in connection with a
proposed development control plan is taken to have been done
under Division 6 of Part 3 (as inserted by that Act).
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(4) Regulations made for the purposes of section 51A or 72 and in
force immediately before the repeal of that section by the 2005
Amending Act are taken to have been made for the purposes of
Division 6 of Part 3 (as inserted by that Act).
Master plans under existing instruments
(1) This clause applies to any provision of an environmental
planning instrument that is in force on the commencement of
this clause and that requires, before the grant of development
consent, a master plan (within the meaning of clause 92A of
the Environmental Planning and Assessment Regulation 2000
as in force before its amendment by the 2005 Amending Act)
for the land concerned.
(2) While that provision continues in force, it is to be construed as
requiring a development control plan under section 74D (as
inserted by the 2005 Amending Act) with respect to the matters
required to be included in the master plan, and in accordance
with the procedures provided for making the master plan, by
the environmental planning instrument.
(3) Any master plan made under that provision before the
commencement of this clause is taken to be a development
control plan under section 74D (as inserted by the 2005
Amending Act).
Section 117 (2) directions
(1) Directions given under section 117 (2) before the
commencement of section 117 (2A) by the 2005 Amending
Act cease to have effect on that commencement.
(2) However, those directions continue in force for the purposes of
any draft local environmental plan that is the subject of a
certificate under section 65 issued before that commencement.
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Schedule 3 Development consent amendments
(Section 3)
[1] Section 79C Evaluation
Insert "(unless the Director-General has notified the consent authority that
the making of the draft instrument has been deferred indefinitely or has not
been approved)" after "consent authority" in section 79C (1) (a) (ii).
[2] Section 80 Determination
Omit the heading to section 80 (4). Insert instead:
(4) Total or partial consent
[3] Section 80 (5)
Omit the subsection. Insert instead:
(5) The consent authority is not required to refuse consent to any
specified part or aspect of development for which development
consent is not initially granted under subsection (4), but
development consent may subsequently be granted for that part
or aspect of the development.
Note. See also Division 2A for special procedures concerning staged
development applications.
[4] Part 4, Division 2A
Insert after Division 2 of Part 4:
Division 2A Special procedures concerning staged
development applications
83A Application of this Division
This Division applies to staged development applications and
to consents granted on the determination of those applications.
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83B Staged development applications
(1) For the purposes of this Act, a staged development application
is a development application that sets out concept proposals for
the development of a site, and for which detailed proposals for
separate parts of the site are to be the subject of subsequent
development applications. The application may set out detailed
proposals for the first stage of development.
(2) A development application is not to be treated as a staged
development application unless the applicant requests it to be
treated as a staged development application.
(3) If consent is granted on the determination of a staged
development application, the consent does not authorise the
carrying out of development on any part of the site concerned
unless:
(a) consent is subsequently granted to carry out
development on that part of the site following a further
development application in respect of that part of the
site, or
(b) the staged development application also provided the
requisite details of the development on that part of the
site and consent is granted for that first stage of
development without the need for further consent.
(4) The terms of a consent granted on the determination of a staged
development application are to reflect the operation of
subsection (3).
83C Staged development applications as alternative to dcp required
by environmental planning instruments
(1) An environmental planning instrument cannot require the
making of a staged development application before
development is carried out.
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(2) However, if an environmental planning instrument requires the
preparation of a development control plan before any particular
or kind of development is carried out on any land, that
obligation may be satisfied by the making and approval of a
staged development application in respect of that land.
Note. Section 74D (5) also authorises the making of a development
application where the relevant planning authority refuses to make, or
delays making, a development control plan.
(3) Any such staged development application is to contain the
information required to be included in the development control
plan by the environmental planning instrument or the
regulations.
83D Status of staged development applications and consents
(1) The provisions of or made under this or any other Act relating
to development applications and development consents apply,
except as otherwise provided by or under this or any other Act,
to a staged development application and a development consent
granted on the determination of any such application.
Note. Applicable provisions in respect of staged development applications
include provisions relating to designated development, integrated
development and regulations made under section 105.
(2) While any consent granted on the determination of a staged
development application for a site remains in force, the
determination of any further development application in respect
of that site cannot be inconsistent with that consent.
(3) Subsection (2) does not prevent the modification in accordance
with this Act of a consent granted on the determination of a
staged development application.
Note. See section 95 (2) which prevents a reduction in the 5 year period
of a development consent.
[5] Section 91 What is "integrated development"?
Insert in alphabetical order of Acts in section 91 (1):
Mining Act 1992 ss 63, 64 grant of mining lease
Petroleum (Onshore) Act 1991 s9 grant of production
lease
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[6] Section 95 Lapsing of consent
Omit section 95 (1) and (2). Insert instead:
(1) A development consent lapses 5 years after the date from
which it operates.
(2) However, a consent authority may reduce that period of 5 years
in granting development consent. This subsection does not
apply to development consent granted to a staged development
application under Division 2A for development that requires a
subsequent development application and consent.
[7] Section 105 Regulations--Part 4
Omit section 105 (1) (j). Insert instead:
(j) the preparation, contents, form and submission of
environmental impact statements and statements of
environmental effects,
[8] Schedule 6 Savings, transitional and other provisions
Insert in appropriate Divisional order (and with appropriate clause numbers)
in the Part of the Schedule inserted by Schedule 6 to this Act:
Division 4 Development consent amendments
Section 80 (5)--staged development conditional consents
(1) The substitution of section 80 (5) by the 2005 Amending Act
does not affect a condition of a development consent that
requires another development consent before development may
be carried out.
(2) Section 95 (as in force immediately before the amendment of
that section by the 2005 Amending Act) continues to apply to
a development consent that is subject to such a condition.
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Staged development applications as alternative to master plans
Section 83C (as inserted by the 2005 Amending Act) applies as
if a reference in that section to a provision of an environmental
planning instrument that requires a development control plan
included a reference to any such provision made before the
commencement of this clause that requires a master plan.
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Schedule 4 Environmental assessment amendments
(Section 3)
[1] Section 110A Nomination of nominated determining authority
Omit "(subsection (3) excepted)" from section 110A (2) (b).
[2] Section 110A (3)
Insert after section 110A (2):
(3) A determining authority (other than the nominated determining
authority) is required to forward to the nominated determining
authority a copy of any submissions made to it under section
113 (2) and to provide other information to the nominated
determining authority, as required by the regulations, to enable
the nominated determining authority to co-ordinate the
preparation and furnishing of reports in relation to the activity
or activity of the specified class or description.
[3] Section 111A
Insert after section 111:
111A Exemption
A determining authority is not under a duty under section 111
(despite its terms) to consider the environmental impact of the
following activities:
(a) a modification of an activity, whose environmental
impact has already been considered, that will reduce its
overall environmental impact,
(b) a routine activity (such as the maintenance of
infrastructure) that the Minister determines has a low
environmental impact and that is carried out in
accordance with a code approved by the Minister,
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(c) an activity (or part of an activity) that has been
approved, or is to be carried out, by another determining
authority after environmental assessment in accordance
with this Part.
Note. Section 75P(2) (c) makes alternative arrangements for
environmental assessment under this Part for projects for which a concept
plan is approved under Part 3A and which is then made subject to
this Part.
[4] Sections 113 and 115
Omit "representations" wherever occurring. Insert instead "submissions".
[5] Schedule 6 Savings, transitional and other provisions
Insert in appropriate Divisional order (and with appropriate clause numbers)
in the Part of the Schedule inserted by Schedule 6 to this Act:
Division 5 Environmental assessment amendments
Application of section 111A (Exemptions)
Section 111A (as inserted by the 2005 Amending Act) extends
to an activity that was carried out or began to be carried out
before the commencement of that section.
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Schedule 5 Enforcement amendments
(Section 3)
[1] Part 6, Division 1A, heading
Omit the heading. Insert instead:
Division 1A Local enforcement powers
[2] Section 118A Power of entry
Omit section 118A (2) and (2A).
[3] Sections 118B, 118C (3) (c), 118D, 118E (2), 118F (1), 118G, 118H,
118I (2), 118K (1) and 118L (1)
Omit ", the Minister or the Director-General" wherever occurring.
[4] Section 118B Inspections and investigations
Omit ", the Minister's or the Director-General's".
[5] Section 118C Notice of entry
Omit ", the Minister, the Director-General" from section 118C (1).
[6] Section 118E Notification of use of force or urgent entry
Omit ", Minister or Director-General (whichever authorised the person to
enter the premises under section 118C (3) or 118D (1))".
[7] Section 118R (5)
Omit "by the Director-General" .
[8] Section 121A Definitions
Insert in alphabetical order:
consent authority includes, in the case of a project to which
Part 3A applies, the Minister.
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development consent includes, in the case of a project to which
Part 3A applies, an approval under that Part to carry out the
project.
[9] Section 121B Orders that may be given by consent authority or by
Minister etc
Insert before section 121B (1) (a):
(aa) the Minister or the Director-General (but only in
connection with a project to which Part 3A applies), or
[10] Section 121B (1), Table
Insert at the end of the Table to section 121B (1):
The person who caused,
18 To do or refrain from The breach has
is causing or is likely to
occurred, is occurring
doing any act to remedy
cause the breach, or the
or is likely to occur
or restrain a breach of
person entitled to act on
Part 3A or of an
the approval
approval under that Part
[11] Section 121B (3)
Insert after section 121B (2):
(3) An order under item 18 of the Table to subsection (1) may only
be given by the Minister or the Director-General.
[12] Section 121D Circumstances in which compliance with secs 121F121K
is required
Insert at the end of section 121D (b):
, or
(c) an order given by the Minister or the Director-General
in connection with a project to which Part 3A applies.
[13] Section 121O Development consent or approval not required to comply
with order
Insert "Part 3A for approval or" before "Part 4".
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[14] Section 121ZF Modification of orders
Omit "if the person".
Insert instead "but, except in the case of an order given by the Minister or
the Director-General, only if the person".
[15] Section 121ZG Revocation of orders
Insert before section 121ZG (1):
(1A) An order given by the Minister may be revoked by the Minister
at any time, and an order given by the Director-General may be
revoked by the Minister or the Director-General at any time.
[16] Section 121ZQ
Insert after section 121ZP:
121ZQ Continuing effect of orders
(1) An order that specifies a time by which, or period within
which, the order must be complied with continues to have
effect until the order is complied with even though the time has
passed or the period has expired.
(2) This section does not apply to the extent that any requirement
under an order is revoked.
[17] Part 6, Divisions 2B and 2C
Insert before Division 3 of Part 6:
Division 2B Monitoring and environmental audits--
approved projects
122A Application of Division
(1) This Division applies to the carrying out of a project approved
under Part 3A.
(2) This Division does not affect the other provisions of this Act.
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122B Nature of monitoring and environmental audits
(1) For the purposes of this Division, monitoring of a project is the
monitoring of the carrying out of the project to provide data on
compliance with the approval of the project or on the project's
environmental impact.
(2) For the purposes of this Division, an environmental audit of a
project is a periodic or particular documented evaluation of an
approved project to provide information to the proponent of the
project and to the persons administering this Act on compliance
with the approval of the project or on the project's
environmental management or impact.
(3) A reference in this section to compliance with the approval of
a project includes a reference to compliance with:
(a) the conditions to which the approval of the project is
subject, and
(b) the requirements of this Act and of relevant provisions
of any other Act referred to in Division 4 of Part 3A.
122C Minister may require monitoring or environmental audits by
imposition of conditions on approved project
(1) The Minister may, by the imposition of conditions on the
approval for a project, require monitoring or an environmental
audit or audits to be undertaken to the satisfaction of the
Minister by the proponent of the project.
(2) A condition requiring monitoring or an environmental audit
may be imposed at the time the approval for the project is given
or at any other time by notice in writing to the proponent of the
project.
(3) Any such condition imposed by notice may be varied or
revoked by a similar notice.
122D Provisions relating to conditions for monitoring and
environmental audits
(1) A condition requiring monitoring may require:
(a) the provision and maintenance of appropriate measuring
and recording devices for the purposes of the
monitoring, and
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(b) the analysis, reporting and retention of monitoring data,
and
(c) certification of the monitoring data (including the extent
to which the terms and conditions of any approval have
or have not been complied with).
(2) A condition requiring an environmental audit must specify the
purpose of the audit. Such a condition may require:
(a) the conduct of the audit by the proponent or by an
independent person or body approved by the Minister or
the Director-General (either periodically or on particular
occasions), and
(b) preparation of written documentation during the course
of the audit, and
(c) preparation of an audit report, and
(d) certification of the accuracy and completeness of the
audit report, and
(e) production to the Minister of the audit report.
122E Offences
(1) False or misleading information in monitoring or audit report
A person must not include information in (or provide
information for inclusion in):
(a) a report of monitoring data, or
(b) an audit report produced to the Minister in connection
with an environmental audit,
if the person knows that the information is false or misleading
in a material respect.
(2) Information not included in monitoring or audit report
The proponent of an approved project must not fail to include
information in (or provide information for inclusion in):
(a) a report of monitoring data, or
(b) an audit report produced to the Minister in connection
with an environmental audit,
if the proponent knows that the information is materially
relevant to the monitoring or audit.
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(3) Retention of monitoring data or audit documentation
The proponent of an approved project must:
(a) retain any monitoring data in accordance with the
relevant condition of the approval for at least 5 years
after it was collected, and
(b) retain any documentation required to be prepared by the
proponent in connection with an environmental audit for
a period of at least 5 years after the audit report
concerned was produced to the Minister, and
(c) produce during that period any such documentation on
request to an authorised officer under Division 2C.
(4) Penalty
Despite section 126, the maximum penalty for an offence under
section 125 arising under this Division is:
(a) in the case of a corporation--$250,000 and, in the case
of a continuing offence, a further penalty of $120,000
for each day the offence continues, or
(b) in the case of an individual--$120,000 and, in the case
of a continuing offence, a further penalty of $60,000 for
each day the offence continues.
122F Self-incriminatory information and use of information
(1) Information must be supplied by a person in connection with
a report of monitoring or an environmental audit, and this
Division applies to any such information that is supplied,
whether or not the information might incriminate the person.
(2) Any information in monitoring data or in an audit report or
other documentation supplied to the Minister in connection
with an environmental audit may be taken into consideration by
the Minister and used for the purposes of this Act.
(3) Without limiting the above, any such information:
(a) is admissible in evidence in any prosecution of the
proponent of an approved project for any offence
(whether under this Act or otherwise), and
(b) may be disclosed by the Minister by publishing it in
such manner as the Minister considers appropriate.
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Division 2C Departmental enforcement powers
Subdivision 1 Preliminary
122G Purposes for which powers under Division may be exercised
(1) Powers may be exercised under this Division for the following
purposes:
(a) for enabling the Minister or Director-General to exercise
their functions under this Act,
(b) for determining whether there has been compliance with
or a contravention of this Act, the regulations, any
environmental planning instrument , any approval under
Part 3A or any development consent under Part 4 or any
document or requirement issued or made under this Act,
(c) for obtaining information or records for purposes
connected with the administration of this Act,
(d) generally for administering this Act and securing the
objects of this Act.
(2) Powers are not to be exercised under this Division for the
purpose only of investigating the exercise of the statutory
functions of a council under this Act.
(3) Nothing in this Division affects any function under any other
part of this Act or under any other Act.
122H Definitions: Division 2C
In this Division:
authorised officer means a person appointed under
section 122I.
occupier of premises means the person who has the
management or control of the premises.
records includes plans, specifications, maps, reports, books and
other documents (whether in writing, in electronic form or
otherwise).
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122I Appointment of authorised officers
(1) The Director-General may appoint any person (including a
class of persons) as an authorised officer for the purposes of
this Division.
(2) An authorisation of a person as an authorised officer can be
given generally, or subject to conditions, limitations or
restrictions or only for limited purposes.
(3) Every authorised officer is to be provided with an identification
card as an authorised officer by the Director-General.
(4) In the course of exercising the functions of an authorised
officer under this Division, the officer must, if requested to do
so by any person affected by the exercise of any such function,
produce the officer's identification card to the person.
Subdivision 2 Powers of entry and search of premises
122J Powers of authorised officers to enter premises
(1) An authorised officer may enter:
(a) any premises at which the authorised officer reasonably
suspects that any industrial, agricultural or commercial
activities are being carried out--at any time during
which those activities are being carried out there, and
(b) any other premises--at any reasonable time.
(2) A power to enter premises conferred by this Subdivision
authorises entry by foot or by means of a motor vehicle or other
vehicle, or in any other manner.
(3) Entry may be effected under this Subdivision by an authorised
officer with the aid of such authorised officers or police officers
as the authorised officer considers necessary and with the use
of reasonable force.
(4) Entry may be effected to any premises with the authority of a
search warrant under section 122M.
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122K Entry into residential premises only with permission or warrant
This Division does not empower an authorised officer to enter
any part of premises used only for residential purposes without
the permission of the occupier or the authority of a search
warrant under section 122M.
122L Powers of authorised officers to do things at premises
(1) An authorised officer may, at any premises lawfully entered, do
anything that in the opinion of the authorised officer is
necessary to be done for the purposes of this Division,
including (but not limited to) the things specified in
subsection (2).
(2) An authorised officer may do any of the following:
(a) examine and inspect any works, plant or other article,
(b) take and remove samples,
(c) make such examinations, inquiries and tests as the
authorised officer considers necessary,
(d) take such photographs, films, audio, video and other
recordings as the authorised officer considers necessary,
(e) require records to be produced for inspection,
(f) examine and inspect any records,
(g) copy any records,
(h) seize anything that the authorised officer has reasonable
grounds for believing is connected with an offence
against this Act or the regulations,
(i) do any thing that a person authorised by a council is
empowered to do under Division 1A,
(j) do any other thing the authorised officer is empowered
to do under this Division.
(3) The power to seize anything connected with an offence
includes a power to seize:
(a) a thing with respect to which the offence has been
committed, and
(b) a thing that will afford evidence of the commission of
the offence, and
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(c) a thing that was used for the purpose of committing the
offence.
A reference to any such offence includes a reference to an
offence that there are reasonable grounds for believing has been
committed.
122M Search warrants
(1) Application for search warrant
An authorised officer may apply to an authorised justice for the
issue of a search warrant if the authorised officer believes on
reasonable grounds that a provision of or made under this Act
is being or has been contravened at any premises.
(2) Issue of search warrant
An authorised justice to whom such an application is made
may, if satisfied that there are reasonable grounds for doing so,
issue a search warrant authorising an authorised officer named
in the warrant:
(a) to enter the premises, and
(b) to exercise any function of an authorised officer under
this Division.
(3) Application of Search Warrants Act 1985
Part 3 of the Search Warrants Act 1985 applies to a search
warrant issued under this section.
(4) Definition
In this section:
authorised justice has the same meaning as in the Search
Warrants Act 1985.
122N Assistance to be given to authorised officers
(1) This section applies for the purpose of enabling an authorised
officer to exercise any of the powers of an authorised officer
under this Division in connection with any premises.
(2) The Director-General may, by notice in writing given to the
owner or occupier of the premises, require the owner or
occupier to provide such reasonable assistance and facilities as
are specified in the notice within a specified time and in a
specified manner.
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(3) Assistance and facilities can be required under this section,
whether they are of the same kind as, or a different kind from,
any prescribed by the regulations.
122O Care to be taken and compensation
(1) In the exercise of a power of entering or searching premises
under this Subdivision, the authorised officer must do as little
damage as possible.
(2) The State must compensate all interested parties for any
damage caused by an authorised officer in exercising a power
of entering premises (but not any damage caused by the
exercise of any other power), unless the occupier obstructed or
hindered the authorised officer in the exercise of the power of
entry.
Subdivision 3 Power to obtain information or records
122P Application of Subdivision
This Subdivision applies whether or not a power of entry under
this Division is being or has been exercised.
122Q Requirement to provide information and records
(1) An authorised officer may, by notice in writing given to a
person, require the person to furnish to the officer such
information or records (or both) as the officer requires by the
notice in connection with any matter within the responsibilities
and functions of the Minister or Director-General under this
Act.
(2) A notice under this Subdivision must specify the manner in
which information or records are required to be furnished and
a reasonable time by which the information or records are
required to be furnished.
122R Provisions relating to records
(1) A notice under this Subdivision may only require a person to
furnish existing records that are in the person's possession or
that are within the person's power to obtain lawfully.
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(2) The body or person to whom any record is furnished under this
Subdivision may take copies of it.
(3) If any record required to be furnished under this Subdivision is
in electronic, mechanical or other form, the notice requires the
record to be furnished in written form, unless the notice
otherwise provides.
122S Power of authorised officers to require answers
(1) An authorised officer may require a person whom the
authorised officer suspects on reasonable grounds to have
knowledge of matters in respect of which information is
reasonably required in connection with any matter within the
responsibilities and functions of the Minister or
Director-General under this Act to answer questions in relation
to those matters.
(2) The Minister or Director-General may require a corporation to
nominate a director or officer of the corporation who is
authorised to represent the corporation for the purposes of
answering questions under this section.
Subdivision 4 General
122T Criminal proceedings relating to compliance with requirements
under this Division
(1) A person is not guilty of an offence under section 125 in
respect of a neglect or failure to comply with a requirement
made of the person under this Division if the person satisfies
the court that the person had a lawful excuse for doing so.
(2) A person must not furnish any information or do any other
thing in purported compliance with a requirement made under
this Division that the person knows is false or misleading in a
material respect.
(3) A person must not wilfully delay or obstruct an authorised
officer in the exercise of the authorised officer's powers under
this Division.
(4) Despite section 126, the maximum penalty for an offence under
section 125 arising under this Division is:
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(a) in the case of a corporation--$250,000 and, in the case
of a continuing offence, a further penalty of $120,000
for each day the offence continues, or
(b) in the case of an individual--$120,000 and, in the case
of a continuing offence, a further penalty of $60,000 for
each day the offence continues.
122U Provisions relating to requirements to furnish records,
information or answer questions
(1) Warning to be given on each occasion
A person is not guilty of an offence of failing to comply with
a requirement under this Division to furnish records or
information or to answer a question unless the person was
warned on that occasion that a failure to comply is an offence.
(2) Self-incrimination not an excuse
A person is not excused from a requirement under this Division
to furnish records or information or to answer a question on the
ground that the record, information or answer might incriminate
the person or make the person liable to a penalty.
(3) Information or answer not admissible if objection made
However, any information furnished or answer given by a
natural person in compliance with a requirement under this
Division is not admissible in evidence against the person in
criminal proceedings (except proceedings for an offence under
this Division) if:
(a) the person objected at the time to doing so on the
ground that it might incriminate the person, or
(b) the person was not warned on that occasion that the
person may object to furnishing the information or
giving the answer on the ground that it might
incriminate the person.
(4) Records admissible
Any record furnished by a person in compliance with a
requirement under this Division is not inadmissible in evidence
against the person in criminal proceedings on the ground that
the record might incriminate the person.
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(5) Further information
Further information obtained as a result of a record or
information furnished or of an answer given in compliance with
a requirement under this Division is not inadmissible on the
ground:
(a) that the record or information had to be furnished or the
answer had to be given, or
(b) that the record or information furnished or answer given
might incriminate the person.
122V Miscellaneous provisions relating to notices
(1) More than one notice under a provision of this Division may be
given to the same person.
(2) A notice given under this Division may be revoked or varied by
a subsequent notice or notices (including by extending the time
for compliance with the notice).
(3) A notice may be given under this Division to a person in
respect of a matter or thing even though the person is outside
the State or the matter or thing occurs or is located outside the
State, so long the matter or thing affects the environment of this
State.
[18] Section 153 Notices
Insert at the end of section 153 (1) (b):
, or
(c) by sending it by facsimile or electronic transmission
(including for example the Internet) to the person in
accordance with arrangements indicated by the person
as appropriate for transmitting documents to the person.
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Schedule 6 Minor amendments
(Section 3)
[1] Section 4 Definitions
Omit the definition of Department from section 4 (1). Insert instead:
Department means the Department of Infrastructure, Planning
and Natural Resources.
[2] Section 4 (1), definition of "Director-General"
Omit the definition. Insert instead:
Director-General means the Director-General of the
Department.
[3] Section 4 (1)
Insert in alphabetical order:
ecologically sustainable development has the same meaning it
has in section 6 (2) of the Protection of the Environment
Administration Act 1991.
[4] Section 13 Director-General of Department of Infrastructure, Planning
and Natural Resources
Insert "or to the Director-General of the Department of Urban Affairs and
Planning" after "Director of Planning" in section 13 (4).
[5] Section 32 Authorisation of matters under environmental planning
instruments
Omit the section.
[6] Section 34 Environmental planning instruments--making, operation and
inspection
Omit section 34 (1)(4).
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[7] Section 34, note
Insert at the end of section 34:
Note. An environmental planning instrument is an instrument for the
purposes of the Interpretation Act 1987, and accordingly standard
provisions under that Act applying to statutory instruments apply to
environmental planning instruments.
[8] Section 45 Notification
Omit section 45 (1) (b).
[9] Sections 79B (5) (g), 112D (1) (g) and 112E (f)
Omit "(as described by section 6 (2) of the Protection of the Environment
Administration Act 1991)" wherever occurring.
[10] Section 115H Principles guiding administration of Division
Omit "(as described in section 6 (2) of the Protection of the Environment
Administration Act 1991)".
[11] Section 117A Inquiry into councils by Director-General of Department of
Local Government
Omit "Department of Planning" wherever occurring.
Insert instead "Department of Infrastructure, Planning and Natural
Resources".
[12] Section 117A (1)
Omit "environmental planning".
[13] Section 155 Application of section 26 of the Interpretation Act 1987
Omit the section.
[14] Section 156 Statute law revision (sec 16)
Omit the section.
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[15] Schedule 6 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
Environmental Planning and Assessment Amendment
(Infrastructure and Other Planning Reform) Act 2005
[16] Schedule 6
Insert at the end of the Schedule with appropriate Part and clause numbers:
Part Environmental Planning and Assessment
Amendment (Infrastructure and Other
Planning Reform) Act 2005
Division 1 Preliminary
Definition
In this Part:
2005 Amending Act means the Environmental Planning and
Assessment Amendment (Infrastructure and Other Planning
Reform) Act 2005.
Savings and transitional regulations
Regulations made under Part 1 of this Schedule have effect
despite anything to the contrary in this Part.
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Schedule 7 Amendment of other Acts and regulation
Schedule 7 Amendment of other Acts and regulation
(Section 4)
7.1 Building and Construction Industry Long Service Payments Act
1986 No 19
Section 3 Definitions
Insert after section 3 (2):
(3) A reference within the Act to a development consent under the
Environmental Planning and Assessment Act 1979 includes a
reference to an approval under Part 3A of that Act.
7.2 Duties Act 1997 No 123
Section 162S Improved vacant land
Insert ", and includes an approval under Part 3A of that Act" at the end of
the definition of development consent in section 162S (3).
7.3 Environmental Planning and Assessment Regulation 2000
[1] Clause 17 For what matters may a development control plan provide?
Omit the clause.
[2] Clause 92A Preliminary planning: sections 79C (1) (a) (iv) and 80 (11) of
the Act
Omit clause 92A (1) (d) and (2) (d) and the definition of master plan in
clause 92A (5).
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7.4 Fisheries Management Act 1994 No 38
[1] Section 201 Circumstances in which a person may carry out dredging
or reclamation work
Insert at the end of section 201 (2) (b):
, or
(c) work excluded from the operation of this section by the
regulations.
[2] Section 220ZF Defences
Insert after section 220ZF (1) (b) (ii):
(iii) a project approved under Part 3A of the
Environmental Planning and Assessment Act
1979, or
7.5 Forestry and National Park Estate Act 1998 No 163
Section 36 Application of Environmental Planning and Assessment
Act 1979
Insert after section 36 (2):
(2A) Forestry operations cannot be declared to be a project under
Part 3A of the Environmental Planning and Assessment Act
1979 during any period that an integrated forestry operations
approval applies to those operations.
7.6 Heritage Act 1977 No 136
[1] Section 56 Definitions
Insert "an application under Part 3A or" after "not being" in paragraph (a)
of the definition of prescribed application.
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[2] Section 66 Application of Subdivision
Insert "Part 3A and"after "1979 (".
7.7 Interpretation Act 1987 No 15
[1] Section 3 Definitions
Insert "or an environmental planning instrument" after "statutory rule" in the
definition of instrument in section 3 (1).
[2] Section 5 Application of Act
Insert after section 5 (5):
(6) The provisions of sections 24, 28, 29, 30, 30B, 33, 42, 43,
69A, 75 and 80 that apply to a statutory rule also apply to an
environmental planning instrument.
[3] Section 21 Meaning of commonly used words and expressions
Insert in section 21 (1) in alphabetical order:
environmental planning instrument means an environmental
planning instrument within the meaning of the Environmental
Planning and Assessment Act 1979.
[4] Section 45 Presumption of validity of certain instruments
Insert at the end of paragraph (b) of the definition of instrument in section
45 (2):
, or
(c) an environmental planning instrument,
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7.8 Land and Environment Court Act 1979 No 204
Section 17 Class 1--environmental planning and protection
appeals
Insert "75K, 75L, 75Q, 75W (5)," before "95A" in section 17 (d).
7.9 Lord Howe Island Act 1953 No 39
Section 15A
Omit the section. Insert instead:
15A Application of EPA Act
(1) Parts 4, 4A and 5A and Division 2A of Part 6 of the
Environmental Planning and Assessment Act 1979 apply to the
Island as if a reference to the consent authority were a reference
to the Board.
(2) For the purposes of that Act:
(a) the Island is taken to be a region within the meaning of
that Act, and
(b) the Board is taken to be the council of an area situated
in that region.
7.10 Mine Subsidence Compensation Act 1961 No 22
Section 15 Mine subsidence districts
Insert after section 15 (8):
(8A) A person does not commit an offence against this section for
anything done within a mine subsidence district that is
excluded from the operation of this section by the regulations.
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7.11 Mining Act 1992 No 29
[1] Section 65 Development consents under Environmental Planning and
Assessment Act 1979
Insert "(being a mining lease granted and a development consent given
before the commencement of Schedule 7.9 to the Environmental Planning
and Assessment Amendment (Infrastructure and Other Planning Reform)
Act 2005)" after "has been given" in section 65 (3).
[2] Section 65 (3) (a)
Insert ", as in force immediately before that commencement" after
"Schedule 1".
[3] Section 74 Mining unaffected by Environmental Planning and
Assessment Act 1979
Omit the section.
[4] Section 110 Councils and development consents
Omit section 110 (2).
[5] Section 239 Rehabilitation etc of area damaged by mining
Insert at the end of the section:
(5) This section has effect despite anything to the contrary in
section 93 of the Environmental Planning and Assessment
Act 1979.
[6] Section 381 Prospecting unaffected by epis
Omit "the Environmental Planning and Assessment Act 1979 or" and "that
Act or".
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Amendment of other Acts and regulation Schedule 7
[7] Section 381
Insert at the end of the section:
(2) A reference in this section to an environmental planning
instrument does not include a reference to a State
environmental planning policy made on or after the
commencement of this subsection.
[8] Schedule 1, Part 2, Division 1, heading
Omit the heading. Insert instead:
Division 1 Notification of Government agencies where
development consent not required for mining
[9] Schedule 1, clause 4A
Insert before clause 5:
4A Application of Division
This Division does not apply to the grant of a mining lease if a
development consent (or approval under Part 3A of the
Environmental Planning and Assessment Act 1979) is required
before the land is used for obtaining minerals.
[10] Schedule 1, Part 2, Division 2, heading
Omit the heading. Insert instead:
Division 2 Landowner consent not required where
development consent required for mining
[11] Schedule 1, clauses 13 and 15
Omit the clauses.
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7.12 National Parks and Wildlife Act 1974 No 80
[1] Section 91AA Director-General may make stop work order
Insert at the end of section 91AA (4) (c):
, or
a project approved under Part 3A of the Environmental
(d)
Planning and Assessment Act 1979.
[2] Section 98 Harming protected fauna, other than threatened species,
endangered populations or endangered ecological communities
Insert at the end of section 98 (5) (c):
, or
a project approved under Part 3A of the Environmental
(d)
Planning and Assessment Act 1979.
[3] Section 99A Directions relating to protected fauna
Insert after section 99A (6) (c):
(c1) in relation to anything essential for carrying out a project
approved under Part 3A of the Environmental Planning
and Assessment Act 1979, or
[4] Section 118A Harming or picking threatened species, endangered
populations or endangered ecological communities
Insert after section 118A (3) (b) (iii):
(iv) a project approved under Part 3A of the
Environmental Planning and Assessment Act
1979, or
[5] Section 118C Damage to critical habitat
Insert after section 118C (5) (b) (iii):
(iv) a project approved under Part 3A of the
Environmental Planning and Assessment Act
1979, or
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[6] Section 118D Damage to habitat of threatened species, endangered
populations or endangered ecological communities
Insert after section 118D (2) (b) (iii):
(iv) a project approved under Part 3A of the
Environmental Planning and Assessment Act
1979, or
[7] Section 156A Offence of damaging reserved land
Insert after section 156A (2) (c) (ii):
(iii) a project approved under Part 3A of the
Environmental Planning and Assessment Act
1979, or
7.13 Petroleum (Onshore) Act 1991 No 84
[1] Section 46 Application of Part 5 of Environmental Planning and
Assessment Act 1979
Omit the section.
[2] Section 47
Omit the section. Insert instead:
47 Application of epis
(1) If a person is authorised under this Act to carry out operations
authorised under a petroleum title other than a production lease:
(a) nothing in, or done under, an environmental planning
instrument operates so as to prevent the holder of the
title carrying out any such operations on the land
comprised in the title, and
(b) to the extent to which anything in, or done under, any
such instrument would so operate, it is of no effect in
relation to the holder.
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(2) A reference in this section to an environmental planning
instrument does not include a reference to a State
environmental planning policy made on or after the
commencement of this subsection.
[3] Section 48 Application of this Division to Government bodies where
development consent etc not required
Omit section 48 (1). Insert instead:
(1) This Division does not apply to the grant of a production lease
if a development consent (or approval under Part 3A of the
Environmental Planning and Assessment Act 1979) is required
before the land is used for the purpose of obtaining petroleum.
[4] Section 54A
Insert before section 55:
54A Division applies only where development consent etc not
required
This Division does not apply to the grant of a production lease
if a development consent (or approval under Part 3A of the
Environmental Planning and Assessment Act 1979) is required
before the land is used for the purpose of obtaining petroleum.
[5] Section 62 Definitions
Omit the definition of operational condition.
[6] Section 63 Applicant for lease required to obtain development consent
Omit the section.
[7] Section 65 Avoidance of certain conditions imposed on grant of
development consent
Omit the section.
[8] Section 66 Environmental Planning and Assessment Act 1979 not
otherwise to affect operations
Omit the section.
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Amendment of other Acts and regulation Schedule 7
[9] Section 67
Omit the section. Insert instead:
67 Development consent under Environmental Planning and
Assessment Act 1979
(1) This section applies if development consent is required for the
use of land for the purpose of obtaining petroleum.
(2) The Minister must not grant a production lease over the land
unless an appropriate development consent is in force in respect
of the land.
[10] Section 68 Certain consents and conditions still operative
Omit the section.
[11] Section 76 Rehabilitation etc of area damaged by operations
Insert at the end of the section:
(5) This section has effect despite anything to the contrary in
section 93 of the Environmental Planning and Assessment
Act 1979.
7.14 RedfernWaterloo Authority Act 2004 No 107
[1] Section 28 Authority as approval body for State infrastructure or other
significant projects
Omit "that is declared to be State significant development for the purpose
of" from section 28 (1).
Insert instead "that is declared to be a project for the purposes of Part 3A
of".
[2] Section 28 (2) and (3)
Omit "consent authority" and "development" wherever occurring.
Insert instead "approval body" and "project", respectively.
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Schedule 7 Amendment of other Acts and regulation
[3] Section 28A
Insert after section 28:
28A Planning agreements with respect to development
The Minister and the Authority are taken to be planning
authorities for the purposes of Division 6 of Part 4 of the
Environmental Planning and Assessment Act 1979.
[4] Sections 29, 30 and 31
Omit "that is State significant development" from sections 29 (1), 30 (1) and
31 (1) wherever occurring.
Insert instead "that is a project to which Part 3A of the Environmental
Planning and Assessment Act 1979 applies".
[5] Section 30 (2)
Insert "(as applied by section 75R (4) of that Act)" after "1979".
[6] Section 30 (2) and (5)
Omit "in relation to development" wherever occurring.
Insert instead "in relation to a project".
[7] Section 30 (4)
Omit the subsection.
[8] Section 31 (2), (4) and (8)
Omit "consent authority", "development to which this section applies" and
"development consent" wherever occurring.
Insert instead "approval body", "a project to which this section applies" and
"approval", respectively.
[9] Section 32
Omit "State significant development" from section 32 (2).
Insert instead "a project to which Part 3A of the Environmental Planning
and Assessment Act 1979 applies".
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Amendment of other Acts and regulation Schedule 7
7.15 Roads Act 1993 No 33
[1] Section 64 RTA may exercise functions of roads authority with respect
to certain roads
Insert after section 64 (1):
(1A) The RTA may, for the purposes of the carrying out of a project
approved under Part 3A of the Environmental Planning and
Assessment Act 1979, exercise the functions of a roads
authority with respect to any road.
[2] Section 64 (2)
Omit "classified".
7.16 Rural Fires Act 1997 No 65
Section 100B Bush fire safety authorities
Insert after section 100B (5) (a):
(a1) does not include the carrying out of any development
excluded from the operation of this section by the
regulations, and
7.17 Water Management Act 2000 No 92
Chapter 2, Part 3, Division 10 Regional environmental plans
Omit the Division.
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