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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Environmental Planning and
Assessment Amendment Bill 2008
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Environmental Planning and Assessment Act
1979 No 203 and other Acts and instruments 2
4 Repeal of Miscellaneous Acts (Planning) Repeal and
Amendment Act 1979 No 205 2
5 Repeal of Act 2
Schedule 1 Amendments relating to environmental planning 3
Schedule 2 Amendments relating to development assessment 22
Schedule 3 Amendments relating to development contributions 83
Schedule 4 Amendments relating to certification of development 121
Schedule 5 Miscellaneous amendments 140
b2007-152-33.d14
This public bill which originated in the Legislative Assembly, has passed and is
now ready for presentation to the Legislative Council for its concurrence.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2008
New South Wales
Environmental Planning and
Assessment Amendment Bill 2008
Act No , 2008
An Act to amend the Environmental Planning and Assessment Act 1979 and other
Acts and instruments to improve the NSW planning system.
See also the Building Professionals Amendment Bill 2008 and the Strata Management
Legislation Amendment Bill 2008.
EXAMINED
Assistant Speaker
Clause 1 Environmental Planning and Assessment Amendment Bill 2008
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Environmental Planning and Assessment Amendment 3
Act 2008. 4
2 Commencement 5
This Act commences on a day or days to be appointed by proclamation. 6
3 Amendment of Environmental Planning and Assessment Act 1979 No 7
203 and other Acts and instruments 8
The Environmental Planning and Assessment Act 1979 and other Acts 9
and instruments specified in Schedules 15 are amended as set out in 10
those Schedules. 11
4 Repeal of Miscellaneous Acts (Planning) Repeal and Amendment Act 12
1979 No 205 13
The Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 is 14
repealed. 15
5 Repeal of Act 16
(1) This Act is repealed on the day following the day on which all of the 17
provisions of this Act have commenced. 18
(2) The repeal of this Act does not, because of the operation of section 30 19
of the Interpretation Act 1987, affect any amendment made by this Act. 20
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Environmental Planning and Assessment Amendment Bill 2008
Amendments relating to environmental planning Schedule 1
Schedule 1 Amendments relating to environmental 1
planning 2
(Section 3) 3
1.1 Principal amendments to Environmental Planning and 4
Assessment Act 1979 5
[1] Section 4 Definitions 6
Omit the definition of environmental planning instrument from section 4 (1). 7
Insert instead: 8
environmental planning instrument means an environmental 9
planning instrument (including a SEPP or LEP but not including 10
a DCP) made, or taken to have been made, under Part 3 and in 11
force. 12
[2] Section 4 (1), definition of "regional environmental plan" 13
Omit the definition. 14
[3] Section 4 (1) 15
Insert in alphabetical order: 16
relevant planning authority: 17
(a) in relation to environmental planning instruments--see 18
section 54, or 19
(b) in relation to development control plans--see section 74B. 20
[4] Section 24 Making of environmental planning instruments 21
Insert at the end of section 24: 22
(2) Environmental planning instruments may be made: 23
(a) by the Governor under Division 2 (called a State 24
environmental planning policy or SEPP), or 25
(b) by the Minister (or delegate) under Division 4 (called a 26
local environmental plan or LEP). 27
Note. Under transitional arrangements made by Schedule 6, some 28
former instruments (such as regional environmental plans, planning 29
scheme ordinances and interim development orders) continue in force. 30
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Schedule 1 Amendments relating to environmental planning
[5] Section 26 Contents of environmental planning instruments 1
Insert before section 26 (4): 2
(3A) An environmental planning instrument may make provision for 3
any zoning of land or other provision to have effect only for a 4
specified period or only in specified circumstances. 5
[6] Section 33A Standardisation of environmental planning instruments 6
Insert after section 33A (8): 7
(8A) An environmental planning instrument may be made under this 8
Part without compliance with the provisions of this Part relating 9
to the conditions precedent to the making of the instrument if: 10
(a) the instrument adopts the provisions of a standard 11
instrument for the purposes of replacing instruments that 12
apply to the land concerned (being existing instruments 13
that do not adopt the provisions of a standard instrument), 14
and 15
(b) the Minister is of the opinion that the replacement 16
instrument does not make any substantial changes to the 17
general effect of the existing instrument or instruments. 18
[7] Section 34A 19
Omit the section. Insert instead: 20
34A Special consultation procedures concerning threatened species 21
(1) In this section, the relevant authority means: 22
(a) in the case of a proposed SEPP--the Director-General, or 23
(b) in the case of a proposed LEP--the relevant planning 24
authority. 25
(2) Before an environmental planning instrument is made, the 26
relevant authority must consult with the Director-General of the 27
Department of Environment and Climate Change if, in the 28
opinion of the relevant authority, critical habitat or threatened 29
species, populations or ecological communities, or their habitats, 30
will or may be adversely affected by the proposed instrument. 31
(3) For the purposes of the consultation, the relevant authority is to 32
provide such information about the proposed instrument as 33
would assist in understanding its effect (including information of 34
the kind prescribed by the regulations). 35
(4) The consultation in relation to a proposed local environmental 36
plan is to commence after a decision under section 56 (Gateway 37
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Environmental Planning and Assessment Amendment Bill 2008
Amendments relating to environmental planning Schedule 1
determination) that the matter should proceed, unless the 1
regulations otherwise provide. 2
(5) The Director-General of the Department of Environment and 3
Climate Change may comment to the relevant authority on the 4
proposed instrument within the following period after the 5
consultation commences: 6
(a) the period agreed between that Director-General and the 7
relevant authority, 8
(b) in the absence of any such agreement, the period of 21 days 9
or such other period as is prescribed by the regulations. 10
(6) The consultation required by this section is completed when the 11
relevant authority has considered any comments so made. 12
(7) In this section, a reference to the Director-General of the 13
Department of Environment and Climate Change includes, in the 14
application of this section to fish and marine vegetation, a 15
reference to the Director-General of the Department of Primary 16
Industries. 17
[8] Section 34B 18
Insert after section 34A: 19
34B Special provision for development in Sydney water catchment 20
relating to water quality 21
(1) In this section, Sydney drinking water catchment means a 22
catchment area of the State to which the Sydney Water Catchment 23
Management Act 1998 applies that is declared by a State 24
Environmental Planning Policy to be the Sydney drinking water 25
catchment. 26
(2) Provision is to be made in a State Environmental Planning Policy 27
requiring a consent authority to refuse to grant consent to a 28
development application relating to any part of the Sydney 29
drinking water catchment unless the consent authority is satisfied 30
that the carrying out of the proposed development would have a 31
neutral or beneficial effect on the quality of water. 32
(3) Pending a declaration under subsection (1), the hydrological 33
catchment (within the meaning of the Drinking Water 34
Catchments Regional Environmental Plan No 1, as in force on 35
that commencement) is taken to be the Sydney drinking water 36
catchment. 37
Note. Schedule 6 provides that regional environmental plans are taken 38
to be SEPPs as a consequence of the repeal of provisions of this Act 39
relating to the making of regional environmental plans. 40
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Schedule 1 Amendments relating to environmental planning
(4) The Minister is not to recommend the making of a State 1
Environmental Planning Policy that relates to the declaration of 2
the Sydney drinking water catchment unless: 3
(a) the Minister administering the Water Management Act 4
2000 approves of the declaration, and 5
(b) the Minister administering the Protection of the 6
Environment Operations Act 1997 has been consulted 7
about the declaration. 8
[9] Part 3, Division 2 9
Omit the Division. Insert instead: 10
Division 2 SEPPs 11
37 Governor may make environmental planning instruments (SEPPs) 12
(1) The Governor may make environmental planning instruments for 13
the purpose of environmental planning by the State. Any such 14
instrument may be called a State environmental planning policy 15
(or SEPP). 16
(2) Without limiting subsection (1), an environmental planning 17
instrument may be made by the Governor to make provision with 18
respect to any matter that, in the opinion of the Minister, is of 19
State or regional environmental planning significance. 20
38 Consultation requirements 21
Before recommending the making of an environmental planning 22
instrument by the Governor, the Minister is to take such steps, if 23
any, as the Minister considers appropriate or necessary: 24
(a) to publicise an explanation of the intended effect of the 25
proposed instrument, and 26
(b) to seek and consider submissions from the public on the 27
matter. 28
Note. See also section 34A. 29
[10] Part 3, Division 3 Regional environmental plans 30
Omit the Division. 31
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Amendments relating to environmental planning Schedule 1
[11] Part 3, Divisions 4 and 4A 1
Omit the Divisions. Insert instead: 2
Division 4 LEPs 3
53 Minister (or delegate) may make environmental planning 4
instrument for local areas (LEPs) 5
(1) The Minister (or delegate) may make environmental planning 6
instruments for the purpose of environmental planning: 7
(a) in each local government area, and 8
(b) in such other areas of the State (including the coastal 9
waters of the State) as the Minister determines. 10
(2) Any such instrument may be called a local environmental plan 11
(or LEP). 12
54 Relevant planning authority 13
(1) For the purposes of this Part, the relevant planning authority in 14
respect of a proposed instrument is as follows: 15
(a) the council for the local government area to which the 16
proposed instrument is to apply, subject to paragraph (b), 17
(b) the Director-General or any other person or body 18
prescribed by the regulations if the Minister so directs 19
under subsection (2). 20
(2) The Minister may direct that the Director-General (or any other 21
person or body prescribed by the regulations) is the relevant 22
planning authority for a proposed instrument in the following 23
cases: 24
(a) the proposed instrument relates to a matter that, in the 25
opinion of the Minister, is of State or regional 26
environmental planning significance, 27
(b) the proposed instrument makes provision that, in the 28
opinion of the Minister, is consequential on the approval of 29
the concept plan for a project under Part 3A, is 30
consequential on the making of another environmental 31
planning or other instrument or is consequential on 32
changes made to a standard instrument under section 33A, 33
(c) the Planning Assessment Commission or a joint regional 34
planning panel has recommended to the Minister that the 35
proposed instrument should be made, 36
(d) the council for the local government area concerned has, in 37
the opinion of the Minister, failed to comply with its 38
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Schedule 1 Amendments relating to environmental planning
obligations with respect to the making of the proposed 1
instrument or has not carried out those obligations in a 2
satisfactory manner, 3
(e) the proposed instrument is to apply to an area that is not 4
within a local government area (subject to subsection (6)). 5
(3) A relevant planning authority that is requested by the owner of 6
any land to exercise its functions under this Division in relation 7
to the land may, as a condition of doing so, require the owner to 8
carry out studies or provide other information concerning the 9
proposal or to pay the costs of the authority in accordance with 10
the regulations. 11
(4) The Minister may, in a direction under this section, require a 12
council to provide studies or other information in its possession 13
relating to the proposed instrument to be provided to the person 14
or body specified in the direction as the relevant planning 15
authority for the proposed instrument. 16
(5) Two or more relevant local authorities may together exercise the 17
functions under this Division of a relevant planning authority in 18
connection with the making of a single principal or amending 19
instrument in relation to the whole of their combined areas. 20
(6) A reference in this section to a local government area includes a 21
reference to an adjoining area that is not within a local 22
government area and that is designated as part of that local 23
government area for the purposes of this Division by the Minister 24
by order published in the Gazette. 25
Note. Section 117 enables directions to be given to councils or other 26
relevant planning authorities on the exercise of functions under this 27
Division in relation to the making of an instrument. 28
55 Relevant planning authority to prepare explanation of and 29
justification for proposed instrument--the planning proposal 30
(1) Before an environmental planning instrument is made under this 31
Division, the relevant planning authority is required to prepare a 32
document that explains the intended effect of the proposed 33
instrument and sets out the justification for making the proposed 34
instrument (the planning proposal). 35
(2) The planning proposal is to include the following: 36
(a) a statement of the objectives or intended outcomes of the 37
proposed instrument, 38
(b) an explanation of the provisions that are to be included in 39
the proposed instrument, 40
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Amendments relating to environmental planning Schedule 1
(c) the justification for those objectives, outcomes and 1
provisions and the process for their implementation 2
(including whether the proposed instrument will comply 3
with relevant directions under section 117), 4
(d) if maps are to be adopted by the proposed instrument, such 5
as maps for proposed land use zones; heritage areas; flood 6
prone land--a version of the maps containing sufficient 7
detail to indicate the substantive effect of the proposed 8
instrument, 9
(e) details of the community consultation that is to be 10
undertaken before consideration is given to the making of 11
the proposed instrument. 12
(3) The Director-General may issue requirements with respect to the 13
preparation of a planning proposal. 14
56 Gateway determination 15
(1) After preparing a planning proposal, the relevant planning 16
authority may forward it to the Minister. 17
(2) After a review of the planning proposal, the Minister is to 18
determine the following: 19
(a) whether the matter should proceed (with or without 20
variation), 21
(b) whether the matter should be resubmitted for any reason 22
(including for further studies or other information, or for 23
the revision of the planning proposal), 24
(c) community consultation required before consideration is 25
given to the making of the proposed instrument (the 26
community consultation requirements), 27
(d) any consultation required with State or Commonwealth 28
public authorities that will or may be adversely affected by 29
the proposed instrument, 30
(e) whether a public hearing is to be held into the matter by the 31
Planning Assessment Commission or other specified 32
person or body, 33
(f) the times within which the various stages of the procedure 34
for the making of the proposed instrument are to be 35
completed, 36
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(g) whether the function under this Division of making a local 1
environmental plan in respect of the matter is to be 2
exercised by the Minister or delegated to the relevant 3
planning authority. 4
Any such delegation may be set out in the determination or made 5
by a separate instrument. 6
(3) A determination of the community consultation requirements 7
includes a determination under section 73A (or other provision of 8
this Act) that the matter does not require community 9
consultation. 10
(4) The regulations may provide for the categorisation of planning 11
proposals for the purposes of this section, and may prescribe 12
standard community consultation requirements for each such 13
category. 14
(5) The Minister may arrange for the review of a planning proposal 15
(or part of a planning proposal) under this section to be conducted 16
by, or with the assistance of, the Planning Assessment 17
Commission or a joint regional planning panel: 18
(a) if there has been any delay in the matter being finalised, or 19
(b) if for any other reason the Minister considers it appropriate 20
to do so. 21
(6) The relevant planning authority may, at any time, forward a 22
revised planning proposal to the Minister. 23
(7) The Minister may, at any time, alter a determination made under 24
this section. 25
(8) A failure to comply with a requirement of a determination under 26
this section in relation to a proposed instrument does not prevent 27
the instrument from being made or invalidate the instrument once 28
it is made. However, if community consultation is required under 29
section 57, the instrument is not to be made unless the community 30
has been given an opportunity to make submissions and the 31
submissions have been considered under that section. 32
57 Community consultation 33
(1) Before consideration is given to the making of a local 34
environmental plan, the relevant planning authority must consult 35
the community in accordance with the community consultation 36
requirements for the proposed instrument. 37
(2) The planning proposal (as revised to comply with the 38
determination under section 56 and in a form approved by the 39
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Amendments relating to environmental planning Schedule 1
Director-General) is to be made publicly available during the 1
period of community consultation. Detailed provisions may be 2
summarised instead of being set out in full if the 3
Director-General is satisfied that the summary provides 4
sufficient details for community consultation. 5
(3) During the period of community consultation, any person may 6
make a written submission to the relevant planning authority 7
concerning the matter (other than any matter that is mandatory 8
under an applicable standard instrument under section 33A). 9
(4) The relevant planning authority may (but need not) make 10
publicly available, in accordance with the community 11
consultation requirements, the submissions made concerning a 12
matter (or a summary of or report on any such submissions). 13
(5) If: 14
(a) a person making a submission so requests, and 15
(b) the relevant planning authority considers that the issues 16
raised in a submission are of such significance that they 17
should be the subject of a hearing, 18
the relevant planning authority is to arrange a public hearing on 19
the issues raised in the submission. 20
(6) The relevant planning authority may arrange a public hearing on 21
any issue whether or not a person has made a submission 22
concerning the matter. 23
(7) A report of any public hearing is to be furnished to the relevant 24
planning authority and may be made publicly available by that 25
authority. 26
(8) The consultation required by this section is completed when the 27
relevant planning authority has considered any submissions 28
made concerning the proposed instrument and the report of any 29
public hearing. 30
58 Relevant planning authority may vary proposals or not proceed 31
(1) The relevant planning authority may, at any time, vary its 32
proposals as a consequence of its consideration of any 33
submission or report during community consultation or for any 34
other reason. 35
(2) If it does so, the relevant planning authority is to forward a 36
revised planning proposal to the Minister. 37
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Schedule 1 Amendments relating to environmental planning
(3) Further community consultation under section 57 is not required 1
unless the Minister so directs in a revised determination under 2
section 56. 3
(4) The relevant planning authority may also, at any time, request the 4
Minister to determine that the matter not proceed. 5
59 Making of local environmental plan by Minister 6
(1) The Director-General is to make arrangements for the drafting of 7
any required local environmental plan to give effect to the final 8
proposals of the relevant planning authority. The 9
Director-General is to consult the relevant planning authority, in 10
accordance with the regulations, on the terms of any such draft 11
instrument. 12
(2) The Minister (or the Minister's delegate) may, following 13
completion of community consultation: 14
(a) make a local environmental plan (with or without variation 15
of the proposals submitted by the relevant planning 16
authority) in the terms the Minister (or delegate) considers 17
appropriate, or 18
(b) decide not to make the proposed local environmental plan. 19
(3) The Minister (or the Minister's delegate) may defer the inclusion 20
of a matter in a proposed local environmental plan. 21
(4) If the Minister (or the Minister's delegate) does not make the 22
proposed local environmental plan or defers the inclusion of a 23
matter in a proposed local environmental plan, the Minister (or 24
delegate) may specify which procedures under this Division the 25
relevant planning authority must comply with before the matter 26
is resubmitted to the Minister (or delegate). 27
60 Regulations 28
The regulations may make further provision with respect to the 29
making of environmental planning instruments under this 30
Division, including: 31
(a) requirements with respect to consultation about proposed 32
instruments by a relevant planning authority with 33
particular persons or bodies, and 34
(b) requirements with respect to planning proposals and the 35
submission of other related reports and documents, and 36
(c) requirements with respect to advertising in connection 37
with community consultation on proposed instruments, 38
and 39
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(d) provisions relating to consultation by the Director-General 1
with relevant planning authorities and others on the 2
drafting of proposed instruments, and 3
(e) requirements for concurrence of public authorities in 4
relation to the reservation of land for a purpose referred to 5
in section 26 (1) (c). 6
Note. The Interpretation Act 1987 applies to environmental planning 7
instruments. 8
[12] Section 73A Expedited amendments of environmental planning 9
instruments 10
Insert after section 73A (b): 11
(c) deal with matters that the Minister considers do not 12
warrant compliance with the conditions precedent for the 13
making of the instrument because they will not have any 14
significant adverse impact on the environment or adjoining 15
land. 16
[13] Section 73A (2) 17
Insert at the end of section 73A: 18
(2) A reference in this section to an amendment of an instrument 19
includes a reference to the amendment or replacement of a map 20
adopted by an instrument. 21
[14] Section 74B Definition (DCPs) 22
Omit the definition of relevant planning authority from section 74B (1). 23
Insert instead: 24
relevant planning authority, in relation to any matter, means the 25
council of the area to which the matter relates or the 26
Director-General. However, the council is not the relevant 27
planning authority in relation to a SEPP and the Director-General 28
is not the relevant planning authority in relation to a LEP for 29
which a council is the relevant planning authority under Division 30
4. 31
[15] Section 74C Preparation of development control plans 32
Insert "or" at the end of section 74C (1) (c) (iii) and omit section 74C (1) (c) 33
(iv). 34
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1.2 Consequential and other amendments to Environmental 1
Planning and Assessment Act 1979 2
[1] Section 4 Definitions 3
Omit the definition of deemed environmental planning instrument from 4
section 4 (1). 5
[2] Section 4 (1), definition of "development control plan" 6
Omit the definition. Insert instead: 7
development control plan (or DCP) means a development 8
control plan made, or taken to have been made, under Division 6 9
of Part 3 and in force. 10
[3] Section 4 (1), definition of "local environmental plan" 11
Omit the definition. Insert instead: 12
local environmental plan (or LEP) --see section 24 (2). 13
[4] Section 4 (1), definition of "State environmental planning policy" 14
Omit the definition. Insert instead: 15
State environmental planning policy (or SEPP)--see section 24 16
(2). 17
[5] Section 4 (5) 18
Omit the subsection. Insert instead: 19
(5) A reference in this Act to an authority or person preparing a 20
document includes a reference to the authority or person causing 21
the document to be prepared on the authority's or person's behalf. 22
[6] Section 7 Responsibility of Minister 23
Omit "local environmental plans" from section 7 (b). 24
Insert instead "environmental planning instruments". 25
[7] Section 25 Statement of aims etc in environmental planning instruments 26
Omit the section. 27
[8] Section 26 Contents of environmental planning instruments 28
Omit section 26 (2) and (3). 29
[9] Section 33A Standardisation of environmental planning instruments 30
Omit "Any draft of the instrument that is exhibited under this Act is to set out 31
in full the provisions that are adopted." from section 33A (3). 32
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[10] Section 33A (9) 1
Omit "or draft instrument". 2
[11] Section 33B Staged repeal and review of environmental planning 3
instruments 4
Omit "draft replacement instruments" from section 33B (2) (b). 5
Insert instead "proposals for replacement instruments". 6
[12] Section 33B (2) (d) 7
Omit "and regional environmental plans". 8
[13] Section 33B (4) 9
Omit "The Minister may, by order published in the Gazette, make a local 10
environmental plan". 11
Insert instead "The Minister may, under Division 4, make a local 12
environmental plan". 13
[14] Section 33B (5) (a) 14
Omit "an order making a plan under that subsection is not required to comply 15
with other requirements". 16
Insert instead "a local environmental plan made pursuant to that subsection is 17
not required to comply with the conditions precedent in Division 4". 18
[15] Section 33B (5) (b) 19
Omit the paragraph. 20
[16] Section 33B (5) (c) 21
Omit "draft plans,". 22
[17] Section 36 Inconsistency between instruments 23
Omit section 36 (1) (a) and (b). Insert instead: 24
(a) there is a general presumption that a State environmental 25
planning policy prevails over a local environmental plan or 26
other instrument made before or after that State 27
environmental planning policy, and 28
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[18] Section 72K Joint exhibition of proposed instrument amendment and 1
advertising of application 2
Omit "the preparation and making of a draft environmental planning 3
instrument" from section 72K (1). 4
Insert instead "the making of a proposed environmental planning instrument". 5
[19] Section 72K (2) 6
Omit "the draft environmental planning instrument". 7
Insert instead "the documents relating to the proposed environmental planning 8
instrument". 9
[20] Section 72K (3) 10
Omit "the draft environmental planning instrument proposes to make". 11
Insert instead "the proposed environmental planning instrument makes". 12
[21] Section 72L Commission of Inquiry 13
Omit the section. 14
[22] Section 73 Review of environmental planning instruments 15
Omit "and regional environmental plans,". 16
[23] Section 74 Amendment of environmental planning instruments 17
Omit section 74 (2). 18
[24] Section 74B Definition (DCPs) 19
Omit "any such draft instrument" from section 74B (2). 20
Insert instead "any such proposed instrument". 21
[25] Section 79B Consultation and concurrence 22
Omit "a deemed environmental planning instrument" from section 79B (8). 23
Insert instead "a deemed instrument referred to in Division 2 of Part 21 of 24
Schedule 6". 25
[26] Section 79C Evaluation 26
Omit section 79C (1) (a) (ii). Insert instead: 27
(ii) any proposed instrument that is or has been the 28
subject of public consultation under this Act and 29
that has been notified to the consent authority 30
(unless the Director-General has notified the 31
consent authority that the making of the proposed 32
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instrument has been deferred indefinitely or has not 1
been approved), and 2
[27] Section 94F Conditions requiring land or contributions for affordable 3
housing 4
Omit "regional environmental plan or" from section 94F (3) (b). 5
[28] Section 96A Revocation or modification of development consent 6
Omit section 96A (1) (a) and (b). Insert instead: 7
(a) the Director-General, having regard to the provisions of 8
any proposed State environmental planning policy, or 9
(b) a council (being the consent authority in relation to the 10
development application referred to in this subsection), 11
having regard to the provisions of any proposed local 12
environmental plan, 13
[29] Section 109A Uses unlawfully commenced 14
Omit "deemed environmental planning instrument" from section 109A (2). 15
Insert instead "deemed instrument referred to in Division 2 of Part 21 of 16
Schedule 6". 17
[30] Section 117 Directions by Minister 18
Omit "draft" from section 117 (2) (a). 19
[31] Section 117 (2) (b) 20
Omit "a draft local environmental plan". Insert instead "a planning proposal". 21
[32] Section 117 (2A) (b) and (c) 22
Omit "draft plans" wherever occurring. Insert instead "planning proposals". 23
[33] Section 117 (2B) 24
Insert after section 117 (2A): 25
(2B) A reference to a council in subsections (2) and (2A) includes a 26
reference to a relevant planning authority under Division 4 of 27
Part 3 that is not a council. 28
[34] Section 117 (5) 29
Omit "any draft". Insert instead "any planning proposal". 30
[35] Section 148 Disclosure and misuse of information 31
Omit "draft" from section 148 (3) (a). Insert instead "proposed". 32
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[36] Section 154 Transfer or amalgamation of land to which environmental 1
planning instrument applies 2
Omit "a draft local environmental plan that has been placed on public 3
exhibition in accordance with section 66" from section 154 (2) (a). 4
Insert instead "a planning proposal that has been placed on public exhibition 5
in accordance with Division 4 of Part 3". 6
[37] Schedule 6 Savings, transitional and other provisions 7
Insert in appropriate order in Part 21 (as inserted by Schedule 5.1 [12]): 8
Division 2 Provisions consequent on Schedule 1 to 9
amending Act 10
119 Definitions 11
In this Division: 12
deemed environmental planning instrument means a former 13
environmental planning instrument referred to in clause 2 of 14
Schedule 3 to the Miscellaneous Acts (Planning) Repeal and 15
Amendment Act 1979, and includes an instrument referred to in 16
clause 3 (2) of that Schedule. 17
existing local environmental plan means a local environmental 18
plan made under Part 3 of this Act (as in force immediately before 19
the relevant commencement day). 20
existing regional environmental plan means a regional 21
environmental plan made under Part 3 of this Act (as in force 22
immediately before the relevant commencement day). 23
existing State environmental planning policy means a State 24
environmental planning policy made under Part 3 of this Act (as 25
in force immediately before the relevant commencement day). 26
the relevant commencement day means the day on which 27
Schedule 1.1 [4] to the amending Act commences. 28
120 Continuation in force of existing SEPPs and REPs 29
All existing State environmental planning policies and existing 30
regional environmental plans are, on the relevant commencement 31
day, taken to be environmental planning instruments made by the 32
Governor under Division 2 of Part 3 of this Act, as amended by 33
the amending Act. 34
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Environmental Planning and Assessment Amendment Bill 2008
Amendments relating to environmental planning Schedule 1
121 Review of existing REPs 1
(1) As soon as practicable after the relevant commencement day, the 2
Minister is to review the provisions of all existing regional 3
environmental plans. 4
(2) An environmental planning instrument (whether a principal or 5
amending instrument) may be made by the Governor under 6
Division 2 of Part 3 of this Act, or by the Minister under Division 7
4 of that Part, to transfer those existing environmental planning 8
provisions (with or without modification) to appropriate new or 9
existing principal instruments that apply to the land concerned. 10
(3) Any such instrument may be made without compliance with the 11
provisions of Part 3 of this Act relating to the conditions 12
precedent to the making of the instrument. 13
122 Continuation in force of existing LEPs 14
(1) All existing local environmental plans are, on the relevant 15
commencement day, taken to be environmental planning 16
instruments made by the Minister under Division 4 of Part 3 of 17
this Act, as amended by the amending Act. 18
(2) The Minister may dispense with any conditions precedent to the 19
making of an environmental planning instrument under that 20
Division if satisfied that the instrument was in the course of 21
preparation before the commencement of this clause. 22
123 Continuation in force of deemed environmental planning 23
instruments 24
(1) All deemed environmental planning instruments that are in force 25
immediately before the relevant commencement day continue in 26
force and have effect according to their tenor. 27
(2) Any such instrument may be amended or repealed by an 28
environmental planning instrument made under Part 3 of this Act. 29
1.3 Amendment of Fisheries Management Act 1994 No 38 30
Section 221ZK Biodiversity certification 31
Omit "public exhibition of a draft of the EPI under section 66" and "that 32
section" from section 221ZK (4) (a). 33
Insert instead respectively "community consultation of the proposed EPI 34
under Part 3" and "that Part". 35
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Environmental Planning and Assessment Amendment Bill 2008
Schedule 1 Amendments relating to environmental planning
1.4 Amendment of Heritage Act 1977 No 136 1
Part 5 Environmental planning instruments affecting certain land 2
Omit the Part. 3
1.5 Amendment of Sydney Water Catchment Management Act 4
1998 No 171 5
[1] Section 31 Function of Tribunal 6
Omit "with the provisions of the regional environmental plan or plans referred 7
to in section 53" from section 31 (1) (c). 8
Insert instead "with the provisions of the environmental planning instrument 9
that was made pursuant to section 53 before its repeal and that are currently in 10
force". 11
[2] Section 40 Other documents to be presented to Parliament 12
Omit section 40 (1) (d). 13
[3] Section 48 Regulations concerning special areas 14
Omit ", including an environmental planning instrument" from section 48 (2). 15
Insert instead ", other than a SEPP under the Environmental Planning and 16
Assessment Act 1979". 17
[4] Section 52 Regulations concerning controlled areas 18
Omit ", including an environmental planning instrument" from section 52 (2). 19
Insert instead ", other than a SEPP under the Environmental Planning and 20
Assessment Act 1979". 21
[5] Part 5, Division 4 Regional environmental plan 22
Omit the Division. 23
1.6 Amendment of Threatened Species Conservation Act 1995 24
No 101 25
Section 126G Biodiversity certification 26
Omit "public exhibition of a draft of the EPI under section 66" and "that 27
section" from section 126G (4) (a). 28
Insert instead respectively "community consultation of the proposed EPI 29
under Part 3" and "that Part". 30
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Environmental Planning and Assessment Amendment Bill 2008
Amendments relating to environmental planning Schedule 1
1.7 Amendment of Water Management Act 2000 No 92 1
Section 322 Regulations 2
Omit ", including an environmental planning instrument" from section 322 3
(2). 4
Insert instead ", other than a SEPP". 5
1.8 Amendment of Drinking Water Catchments Regional 6
Environmental Plan No 1 7
Clauses 9 and 23 8
Omit the clauses. 9
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Environmental Planning and Assessment Amendment Bill 2008
Schedule 2 Amendments relating to development assessment
Schedule 2 Amendments relating to development 1
assessment 2
(Section 3) 3
2.1 Principal amendments to Environmental Planning and 4
Assessment Act 1979 5
[1] Section 4 Definitions 6
Omit the definitions of Commission of Inquiry and Commissioner of Inquiry 7
from section 4 (1). 8
[2] Section 4 (1), definition of "consent authority" 9
Omit paragraph (b) of the definition. Insert instead: 10
(b) if a provision of this Act, the regulations or an 11
environmental planning instrument specifies a Minister, 12
the Planning Assessment Commission, a joint regional 13
planning panel or public authority (other than a council) as 14
having the function to determine the application--that 15
Minister, Commission, panel or authority, as the case may 16
be. 17
[3] Section 4 (1) 18
Insert in alphabetical order: 19
independent hearing and assessment panel means a panel 20
constituted under section 23I. 21
joint regional planning panel means a joint regional planning 22
panel constituted under section 23G. 23
planning arbitrator means a planning arbitrator listed on the 24
register of planning arbitrators under section 23K. 25
Planning Assessment Commission means the Planning 26
Assessment Commission constituted under section 23B. 27
planning assessment panel means a panel listed in Schedule 5B. 28
[4] Part 2, Division 5 and section 20 Local Government Liaison Committee 29
Omit the Division heading and the section. 30
[5] Section 22 Establishment of other committees 31
Omit the section. 32
[6] Section 23 Delegation 33
Omit section 23 (1) (c). 34
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Environmental Planning and Assessment Amendment Bill 2008
Amendments relating to development assessment Schedule 2
[7] Section 23 (1) (e) 1
Omit "council, or". Insert instead "council,". 2
[8] Section 23 (1) (f) and (g) 3
Omit section 23 (1) (f). Insert instead: 4
(f) the Planning Assessment Commission, or 5
(g) a joint regional planning panel, 6
[9] Section 23 (1A) and (1B) 7
Insert after section 23 (1): 8
(1A) The Planning Assessment Commission may, by instrument in 9
writing and with the approval of the Minister, delegate any of the 10
Commission's functions conferred or imposed by or under this or 11
any other Act. 12
(1B) A joint regional planning panel may, by instrument in writing and 13
with the approval of the Minister, delegate any of the panel's 14
functions conferred or imposed by or under this or any other Act 15
to a council for an area situated wholly or partly in a part of the 16
State for which the panel is appointed. 17
[10] Section 23 (4), (5) and (6) 18
Omit "or Director-General" wherever occurring. 19
Insert instead ", Director-General, Commission or panel". 20
[11] Section 23 (6) 21
Omit "his or her". Insert instead "the". 22
[12] Section 23 (8) (a1) 23
Omit the paragraph. Insert instead: 24
(a1) the function of the Minister under Part 3A of determining 25
whether to approve under section 75J the carrying out of a 26
critical infrastructure project or under section 75O the 27
concept plan for a critical infrastructure project, or 28
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Environmental Planning and Assessment Amendment Bill 2008
Schedule 2 Amendments relating to development assessment
[13] Part 2A 1
Insert after Part 2: 2
Part 2A Other planning bodies 3
Division 1 Preliminary 4
23A Definitions 5
In this Part: 6
Commission means the Planning Assessment Commission. 7
regional panel means a joint regional planning panel. 8
Division 2 Planning Assessment Commission 9
23B Planning Assessment Commission 10
(1) There is constituted by this Act a body corporate with the 11
corporate name of the Planning Assessment Commission of New 12
South Wales. 13
(2) The Commission has such functions as are conferred or imposed 14
on it by or under this or any other Act. 15
(3) The Commission is not subject to the direction or control of the 16
Minister, except in relation to the procedures of the Commission 17
and to the extent specifically provided for in this Act. 18
(4) The Commission is a statutory body representing the Crown. 19
Note. By virtue of section 13A of the Interpretation Act 1987, a statutory 20
body representing the Crown has the status, privileges and immunities 21
of the Crown. 22
(5) Schedule 3 has effect with respect to the Commission. 23
23C Chairperson of Commission 24
The work of the Commission is, subject to this Act and the 25
regulations, to be allocated by the chairperson of the 26
Commission. 27
Note. The chairperson is appointed under Schedule 3. 28
23D Functions of Commission 29
(1) The Commission has the following functions: 30
(a) to determine applications for the approval of projects and 31
concept plans under Part 3A, if those matters are delegated 32
to it by the Minister, 33
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Environmental Planning and Assessment Amendment Bill 2008
Amendments relating to development assessment Schedule 2
(b) if requested to do so by the Minister: 1
(i) to advise the Minister as to planning or development 2
matters, environmental planning instruments or the 3
administration or implementation of the provisions 4
of this Act, or any related matter, and 5
(ii) to review any aspect of a project, or a concept plan, 6
under Part 3A, and 7
(iii) to review all or any of the environmental aspects of 8
proposed development the subject of a development 9
application (whether or not it is designated 10
development), or a part of any such proposed 11
development, and 12
(iv) to review all or any of the environmental aspects of 13
an activity referred to in section 112 (1), or of a part 14
of any such activity, and 15
(v) to review a proposal to constitute, alter or abolish a 16
development area under section 132 or 133, 17
(c) any function of a regional panel, an independent hearing 18
and assessment panel or a planning assessment panel 19
conferred on it by order in writing by the Minister, 20
(d) if a regional panel has not been appointed for any part of 21
the State, any function that is conferred on a regional panel 22
under an environmental planning instrument applicable to 23
that part or that is otherwise conferred on a regional panel 24
under this Act. 25
(2) For the purposes of subsection (1) (c) and (d), the Commission 26
has all the functions of the panel concerned. 27
(3) The Commission cannot employ any staff. 28
Note. Staff to enable the Commission to exercise its functions may be 29
employed under Chapter 1A of the Public Sector Employment and 30
Management Act 2002 in the Government Service. 31
(4) However, the Commission may: 32
(a) arrange, with the approval of the Director-General, for the 33
use of the services of any staff (by secondment or 34
otherwise) or facilities of a Division of the Government 35
Service or a public authority, and 36
(b) with the approval of the Director-General, engage such 37
consultants as it requires to exercise its functions. 38
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Environmental Planning and Assessment Amendment Bill 2008
Schedule 2 Amendments relating to development assessment
23E Reviews by, and procedures of, Commission 1
The regulations may make provision for or with respect to the 2
following: 3
(a) the procedures of the Commission, including the 4
procedures for reviews relating to any or all, or a class, of 5
its functions, 6
(b) without limiting paragraph (a), the circumstances in which 7
public hearings are to be held by the Commission, 8
(c) without limiting paragraph (a), providing that parties are 9
not to be represented (whether by an Australian legal 10
practitioner or any other person) or are only to be 11
represented in specified circumstances, 12
(d) the conferral on the Commission of power to require a 13
person to give evidence or produce documents for the 14
purposes of a review or the exercise of any of its other 15
functions, 16
(e) additional procedural requirements relating to hearings 17
involving a proposed development or activity that may 18
involve the need for an approval under the Water 19
Management Act 2000 or a licence under the Water Act 20
1912, 21
(f) reports of the Commission's findings and 22
recommendations, 23
(g) the making of findings and recommendations of the 24
Commission public, 25
(h) the provision of information by the Commission. 26
23F No appeals against decisions by Commission after public 27
hearings 28
(1) This section has effect despite any other provision of this Act or 29
the regulations. 30
(2) An appeal under this Act may not be made in respect of a decision 31
of the Commission in exercising a function conferred on the 32
Commission by or under this Act (including a function delegated 33
to it under this Act) if the decision was made by the Commission 34
after a public hearing. 35
(3) In this section: 36
appeal includes a review application under Division 7A of Part 4. 37
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Environmental Planning and Assessment Amendment Bill 2008
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Division 3 Joint regional planning panels 1
23G Joint regional planning panels 2
(1) The Minister may, by order published in the Gazette, constitute a 3
joint regional planning panel for a particular part of the State 4
specified in the order. 5
(2) A regional panel has the following functions: 6
(a) functions as a consent authority that are conferred on it 7
under an environmental planning instrument, 8
(b) any functions that are conferred on it under Division 1AA 9
(Planning administrators and panels) of Part 6, 10
(c) to advise the Minister as to planning or development 11
matters or environmental planning instruments relating to 12
the part of the State for which it is appointed, or any related 13
matters, if requested to do so by the Minister. 14
(3) A regional panel has the functions conferred or imposed on it by 15
or under this or any other Act. 16
(4) A regional panel is not subject to the direction or control of the 17
Minister, except in relation to the procedures of the regional 18
panel and to the extent specifically provided for in this Act. 19
(5) A regional panel is a statutory body representing the Crown. 20
Note. By virtue of section 13A of the Interpretation Act 1987, a statutory 21
body representing the Crown has the status, privileges and immunities 22
of the Crown. 23
(6) Schedule 4 has effect with respect to regional panels. 24
23H Regulations 25
The regulations may make provision for or with respect to the 26
following matters: 27
(a) the procedures of a regional panel in exercising its 28
functions, 29
(b) the provision of information and reports by regional 30
panels, 31
(c) without limiting paragraph (a), providing that parties to 32
matters being determined by a regional panel are not to be 33
represented (whether by an Australian legal practitioner or 34
any other person) or are only to be represented in specified 35
circumstances. 36
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Environmental Planning and Assessment Amendment Bill 2008
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Division 4 Independent hearing and assessment panels 1
23I Independent hearing and assessment panels 2
(1) A council may constitute a panel of experts to assess any aspect 3
of a development application or any planning matter referred to 4
the panel by the council (other than a matter subject to a 5
determination or review by a regional panel). 6
(2) A council must constitute a panel of experts to assess any aspect 7
of a development application or any planning matter if an 8
assessment by a panel is required by an environmental planning 9
instrument. 10
(3) The members of a panel of experts are to be selected from a list 11
of persons approved for the time being by the Director-General 12
for the purposes of this section. 13
(4) For the purposes of an assessment, a panel may receive or hear 14
submissions from interested persons and must submit a report to 15
the council within the time required by the council. 16
(5) A panel is to exercise its functions in accordance with the 17
regulations and any arrangements approved by the Minister. 18
However, a panel is not subject to the direction of the Minister on 19
the findings or recommendations in its report. 20
(6) The council is to provide staff and facilities for the purpose of 21
enabling a panel to exercise its functions. 22
(7) A member of a panel is entitled to be paid such remuneration 23
(including travelling and subsistence allowances) as the Minister 24
may from time to time determine in respect of the member. 25
23J Regulations 26
The regulations may make provision for or with respect to the 27
following matters: 28
(a) the procedures of independent hearing and assessment 29
panels in exercising functions, 30
(b) without limiting paragraph (a), providing that parties are 31
not to be represented (whether by an Australian legal 32
practitioner or any other person) or are only to be 33
represented in specified circumstances. 34
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Environmental Planning and Assessment Amendment Bill 2008
Amendments relating to development assessment Schedule 2
Division 5 Planning arbitrators 1
23K Planning arbitrators 2
(1) A register of planning arbitrators is to be kept by the 3
Director-General. 4
(2) A person is to be listed on the register if approved by the Minister. 5
(3) The register may designate planning arbitrators for particular 6
local government areas or particular kinds of development, or 7
both. 8
(4) A person may be listed as a planning arbitrator if the person has 9
expertise in 1 or more of planning, architecture, heritage, urban 10
design, law or engineering. 11
(5) A planning arbitrator is entitled to be paid such remuneration 12
(including travelling and subsistence allowances) as the Minister 13
may from time to time determine in respect of the arbitrator. 14
(6) The Minister may determine that the whole or part of any 15
remuneration payable under this section to a planning arbitrator 16
who is a member of staff of a council is payable to the council, if 17
the planning arbitrator is paid by the council while exercising 18
functions as a planning arbitrator. 19
23L Regulations 20
The regulations may make provision for or with respect to the 21
following: 22
(a) the requirements for registration and the appointment and 23
removal of planning arbitrators, 24
(b) the procedures of planning arbitrators in exercising their 25
functions, 26
(c) without limiting paragraph (b), providing that parties are 27
not to be legally represented or are only to be legally 28
represented in specified circumstances, 29
(d) without limiting paragraph (b), providing that parties may 30
be represented by a person other than an Australian legal 31
practitioner in specified circumstances, 32
(e) regulating the conduct of planning arbitrators, 33
(f) regulating the conduct of matters by planning arbitrators in 34
respect of conflicts of interest and prohibiting planning 35
arbitrators from determining matters if there is a conflict of 36
interest, 37
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Environmental Planning and Assessment Amendment Bill 2008
Schedule 2 Amendments relating to development assessment
(g) complaints about planning arbitrators, including actions to 1
be taken in relation to complaints and planning arbitrators, 2
(h) the provision of information or reports by planning 3
arbitrators and councils with respect to functions exercised 4
by planning arbitrators. 5
Division 6 Matters relating to councils and council 6
functions 7
23M Obligation to consult with council about certain decisions 8
The Commission or a regional panel must not exercise a function 9
that will result in the making of a decision that will have, or that 10
might reasonably be expected to have, a significantly adverse 11
financial impact on a council until after it has consulted with the 12
council. 13
23N Obligations of councils to assist Commission, regional panels and 14
planning arbitrators 15
(1) The Commission, a regional panel or a planning arbitrator is 16
entitled: 17
(a) to have access to, and to make copies of and take extracts 18
from, records of a council relevant to the exercise of the 19
Commission's, panel's or arbitrator's functions, and 20
(b) to the use of the staff and facilities of a relevant council in 21
order to exercise the Commission's, panel's or arbitrator's 22
functions. 23
(2) The general manager of a council must carry out any reasonable 24
direction of the Commission, a regional panel or a planning 25
arbitrator relating to functions of the council being exercised by 26
the Commission or panel or to a review by the arbitrator of a 27
matter for which the council is the consent authority. 28
Maximum penalty: 10 penalty units. 29
(3) A member of a council, or the general manager or other member 30
of staff of a council, must not obstruct the Commission, a 31
regional panel, a planning arbitrator or a member of the 32
Commission or a panel in the exercise of the Commission's, 33
panel's or arbitrator's functions under this Act. 34
Maximum penalty: 10 penalty units. 35
23O Recovery of certain costs 36
(1) A council is to pay to the Director-General out of the council's 37
consolidated fund: 38
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Environmental Planning and Assessment Amendment Bill 2008
Amendments relating to development assessment Schedule 2
(a) the remuneration, costs and expenses of the Commission 1
in respect of the exercise of any functions of a consent 2
authority involving development on land within the area of 3
the council, and 4
(b) any other costs relating to the provision of services to the 5
Commission by the Department in respect of the exercise 6
of any such functions. 7
(2) The councils for an area or part of an area situated in a part of the 8
State for which a regional panel has been appointed are to pay to 9
the Director-General, out of the councils' consolidated funds, the 10
remuneration, costs and expenses of the panel and of the 11
Department relating to the costs of administration of the panel. 12
(3) A council is to pay, out of the council's consolidated fund, the 13
remuneration, costs and expenses of any independent hearing and 14
assessment panel established by the council. 15
(4) A council is to pay to the Director-General, out of the council's 16
consolidated fund, the remuneration, costs and expenses of a 17
planning arbitrator appointed to carry out a review of a matter for 18
which the council is the consent authority. 19
(5) The Minister may do either or both of the following: 20
(a) exempt a council from payment of any or all of any such 21
remuneration, costs or expenses, 22
(b) resolve any dispute as to the amount of any such 23
remuneration, costs or expenses. 24
23P Indemnity 25
A council must indemnify a planning arbitrator appointed by it to 26
determine a matter against a liability for costs incurred by the 27
planning arbitrator with respect to an appeal concerning a matter 28
under section 97 or 123. 29
[14] Section 75F Environmental assessment requirements for approval 30
Omit "relevant public authorities" from section 75F (4). 31
Insert instead "such public authorities as relevant guidelines in respect of the 32
project require to be consulted". 33
[15] Section 76A Development that needs consent 34
Insert ", or a class of development," after "development" where firstly 35
occurring in section 76A (5). 36
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Environmental Planning and Assessment Amendment Bill 2008
Schedule 2 Amendments relating to development assessment
[16] Section 76A (6) 1
Omit the subsection. 2
[17] Section 78A Application 3
Insert at the end of section 78A (8) (b), before the note: 4
, or 5
(c) if the application is in respect of development not referred 6
to in paragraph (a) or (b), a statement of environmental 7
effects prepared by or on behalf of an applicant in 8
accordance with the regulations. 9
[18] Section 79AA 10
Insert after section 79A: 11
79AA Public participation--other development subject to objector 12
reviews 13
(1) This section applies to development applications of a class in 14
respect of which a review application may be made under section 15
96E. 16
(2) Regulations may be made for or with respect to the following: 17
(a) notice of development applications to which this section 18
applies, 19
(b) submissions to the consent authority about development 20
applications to which this section applies. 21
[19] Section 79C Evaluation 22
Insert after section 79C (1): 23
(1A) Rejection of submissions--development (other than 24
designated development) subject to objector review 25
A consent authority determining a development application of a 26
class in respect of which a review application may be made under 27
section 96E may reject a submission that it considers has been 28
made primarily to secure or maintain a direct or indirect 29
commercial advantage for the objector. If an objection is rejected 30
under this subsection, this Act applies as if the objection had not 31
been made. 32
[20] Section 80A Imposition of conditions 33
Omit "section 97" from section 80A (3). 34
Insert instead "section 96C, 96D or 97". 35
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Environmental Planning and Assessment Amendment Bill 2008
Amendments relating to development assessment Schedule 2
[21] Section 80A (10B)(10E) 1
Insert in appropriate order in section 80A: 2
(10B) Review of extended hours of operation and number of persons 3
permitted 4
A development consent that is granted subject to a reviewable 5
condition may be granted subject to a further condition that the 6
consent authority may review that condition at any time or at 7
intervals specified by the consent and that the reviewable 8
condition may be changed on any such review. 9
(10C) The regulations may make provision for or with respect to the 10
kinds of development that may be subject to a further condition 11
referred to in subsection (10B), the matters that must be included 12
in such a condition and the procedures for a review under such a 13
condition. 14
(10D) A decision by a consent authority to change a reviewable 15
condition on a review is taken to be a determination of a 16
development consent for the purposes of this Act. 17
Note. A review application or an appeal against a determination of a 18
development consent may be made under Division 7A or 8. 19
(10E) For the purposes of subsections (10B)(10D), a reviewable 20
condition means any of the following: 21
(a) a condition that permits extended hours of operation (in 22
addition to other specified hours of operation), 23
(b) a condition that increases the maximum number of persons 24
permitted in a building (in addition to the maximum 25
number otherwise permitted). 26
[22] Part 4, Division 3 27
Omit the note after the heading to the Division. 28
[23] Section 85A Process for obtaining complying development certificates 29
Omit section 85A (2). 30
[24] Section 85A (8) 31
Omit "7 days". Insert instead "the period prescribed by the regulations". 32
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Environmental Planning and Assessment Amendment Bill 2008
Schedule 2 Amendments relating to development assessment
[25] Section 85A (11) (c) 1
Insert at the end of section 85A (11) (b): 2
, and 3
(c) if the determination is to issue a complying development 4
certificate, the council or accredited certifier must notify 5
any other person, if required to do so by the regulations, in 6
accordance with the regulations. 7
[26] Section 86A Duration of complying development certificate 8
Insert after section 86A (4): 9
(5) The regulations may set out circumstances in which work is or is 10
not taken to be physically commenced for the purposes of this 11
section. 12
[27] Part 4, Division 4 13
Insert after Division 3: 14
Division 4 Crown developments 15
88 Definitions 16
(1) In this Division: 17
applicable regional panel for development means the regional 18
panel for the part of the State in which the development is to be 19
carried out. 20
Crown development application means a development 21
application made by or on behalf of the Crown. 22
regional panel means a joint regional planning panel. 23
(2) A reference in this Division to the Crown: 24
(a) includes a reference to a person who is prescribed by the 25
regulations to be the Crown for the purposes of this 26
Division, and 27
(b) does not include a reference to: 28
(i) a capacity of the Crown that is prescribed by the 29
regulations not to be the Crown for the purposes of 30
this Division, or 31
(ii) a person who is prescribed by the regulations not to 32
be the Crown for the purposes of this Division. 33
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89 Determination of Crown development applications 1
(1) A consent authority (other than the Minister) must not: 2
(a) refuse its consent to a Crown development application, 3
except with the approval of the Minister, or 4
(b) impose a condition on its consent to a Crown development 5
application, except with the approval of the applicant or 6
the Minister. 7
(2) If the consent authority fails to determine a Crown development 8
application within the period prescribed by the regulations, the 9
applicant or the consent authority may refer the application: 10
(a) to the Minister, if the consent authority is not a council, or 11
(b) to the applicable regional panel, if the consent authority is 12
a council. 13
(3) An applicable regional panel to which a Crown development 14
application is referred may exercise the functions of the council 15
as a consent authority (subject to subsection (1)) with respect to 16
the application. 17
(4) A decision by a regional panel in determining a Crown 18
development application is taken for all purposes to be the 19
decision of the council. 20
(5) If an applicable regional panel fails to determine a Crown 21
development application within the period prescribed by the 22
regulations, the applicant or the panel may refer the application 23
to the Minister. 24
(6) The party that refers an application under this section must notify 25
the other party in writing that the application has been referred. 26
(7) When an application is referred under this section to an 27
applicable regional panel or the Minister, the consent authority 28
must, as soon as practicable, submit to the panel or the Minister: 29
(a) a copy of the development application, and 30
(b) details of its proposed determination of the development 31
application, and 32
(c) the reasons for the proposed determination, and 33
(d) any relevant reports of another public authority. 34
89A Directions by Minister 35
(1) On a referral being made by a consent authority or an applicable 36
regional panel to the Minister under this Division, the Minister 37
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Environmental Planning and Assessment Amendment Bill 2008
Schedule 2 Amendments relating to development assessment
may direct the relevant consent authority, within the time 1
specified in the direction: 2
(a) to approve the Crown development application, with or 3
without specified conditions, or 4
(b) to refuse the Crown development application. 5
(2) A consent authority must comply with a direction by the 6
Minister. 7
(3) If the consent authority fails to comply, the consent authority is 8
taken, on the last date for compliance specified in the direction, 9
to have determined the Crown development application in 10
accordance with the Minister's direction. 11
(4) Despite subsection (2), a consent authority may vary a condition 12
specified by the Minister with the approval of the applicant. 13
89B Modification of Crown development consents 14
This Division applies to an application made by or on behalf of 15
the Crown under section 96 in the same way as it applies to an 16
application for development consent. 17
89C Applicant's rights of appeal 18
This Division does not affect any right of an applicant to seek a 19
review or to appeal under Division 7A or 8. 20
[28] Section 95 Lapsing of consent 21
Insert "However, the consent does lapse if that work is not substantially 22
commenced within 2 years after that date." after "this section." in section 95 23
(4). 24
[29] Section 95 (7) 25
Insert after section 95 (6): 26
(7) The regulations may set out circumstances in which work is or is 27
not taken to be substantially or physically commenced for the 28
purposes of this section. 29
[30] Section 95A Extension of lapsing period for 1 year 30
Insert after section 95A (1): 31
(1A) If, in granting a development consent that is subject to a deferred 32
commencement condition under section 80 (3), the consent 33
authority specifies a shorter period than 5 years within which the 34
consent will lapse if it is not satisfied as to the matter specified in 35
the condition, the applicant or any other person entitled to act on 36
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the consent may apply to the consent authority, before the period 1
expires, for an extension of 1 year. 2
[31] Section 95A (3) 3
Omit "subsection (1)". Insert instead "this section". 4
[32] Section 96 Modification of consents--generally 5
Omit "(5), (6) and (7)" from section 96 (1). 6
Insert instead "(5) and (6) and Divisions 7A and 8". 7
[33] Section 96 (3A) 8
Insert after section 96 (3): 9
(3A) For the purposes of the application of section 79C (1) under 10
subsection (3): 11
(a) the consent authority must treat the application for 12
modification as if it were an application for development 13
consent made at the time the consent authority is 14
determining the application for modification, and 15
(b) without limiting paragraph (a), the provisions of any 16
environmental planning instrument apply to the 17
application for modification as if it were an application for 18
development consent. 19
[34] Section 96 (6) 20
Omit section 96 (6) and (7). Insert instead: 21
(6) Deemed refusals 22
The regulations may make provision for or with respect to the 23
following: 24
(a) the period after which a consent authority, that has not 25
determined an application under this section, is taken to 26
have determined the application by refusing consent, 27
(b) the effect of any such deemed determination on the power 28
of a consent authority to determine any such application, 29
(c) the effect of a subsequent determination by a consent 30
authority on any review or appeal sought under this Act. 31
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[35] Section 96AA Modification by consent authorities of consents granted 1
by the Court 2
Omit section 96AA (3) and (4). Insert instead: 3
(3) The regulations may make provision for or with respect to the 4
following: 5
(a) the period after which a consent authority, that has not 6
determined an application under this section, is taken to 7
have determined the application by refusing consent, 8
(b) the effect of any such deemed determination on the power 9
of a consent authority to determine any such application, 10
(c) the effect of a subsequent determination by a consent 11
authority on any review or appeal sought under this Act. 12
[36] Part 4, Division 7A: 13
Insert after Division 7 of Part 4: 14
Division 7A Reviews of development application 15
determinations by bodies other than the 16
Land and Environment Court 17
96B Definitions 18
In this Division: 19
applicable regional panel for development means the regional 20
panel for the part of the State in which the development is to be 21
carried out. 22
Commission means the Planning Assessment Commission. 23
deemed refusal: 24
(a) in relation to a development application, means a refusal of 25
a development application taken to have been determined 26
under section 82 (1), or 27
(b) in relation to an application to modify a development 28
consent, means a refusal of an application taken to have 29
been determined in accordance with regulations made 30
under section 96 (6) or 96AA (3). 31
planning arbitrator matter means: 32
(a) a class of reviewable determinations that is prescribed by 33
the regulations for the purposes of this definition, or 34
(b) a determination by a council that a development 35
application may not be considered because further 36
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information is required or it does not comply with the 1
provisions of this Act or the regulations. 2
regional panel means a joint regional planning panel. 3
review application means an application for a review under this 4
Division. 5
reviewable determination means: 6
(a) a determination of a development application (including a 7
deemed refusal), or 8
(b) a determination of an application to modify a development 9
consent (including a deemed refusal), or 10
(c) a determination by a consent authority, or a person 11
specified by the consent authority, that the consent 12
authority or person is not satisfied (pursuant to a condition 13
imposed under section 80A (2)) as to a specified aspect of 14
a development that is to be carried out to the satisfaction of 15
the consent authority or person, or 16
(d) a determination that a consent authority is not satisfied as 17
to a matter that it must be satisfied about before a "deferred 18
commencement" consent under section 80 (3) can operate, 19
other than a determination of a class prescribed by the regulations 20
for the purposes of this definition. 21
reviewing body means a planning arbitrator, a regional panel or 22
the Commission. 23
96C Applications for review of planning arbitrator matters--applicants 24
(1) The applicant in relation to a planning arbitrator matter may 25
apply to the council for a review of the determination. 26
(2) An application for a review of a planning arbitrator matter must 27
be made within the period prescribed by the regulations. 28
(3) The council must notify the Director-General of a review 29
application made under this section as soon as practicable. 30
(4) The Director-General must appoint a planning arbitrator to 31
determine an application for a review of a planning arbitrator 32
matter. 33
(5) The Director-General may appoint more than one planning 34
arbitrator to review a matter, if the Director-General thinks it 35
appropriate to do so in the circumstances. 36
(6) An applicant may amend the development the subject of the 37
original application. 38
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(7) The prescribed fee must be paid in connection with a review 1
application. 2
(8) An application for a review of a reviewable determination cannot 3
be made under this section if an appeal under section 97 (5) has 4
been made against the determination. 5
96D Applications for reviews of other matters--applicants 6
(1) The applicant in relation to a development application 7
determined by a council (other than a planning arbitrator matter), 8
that is of a class prescribed by the regulations for the purposes of 9
this section, may apply to the council for a review of the 10
determination. 11
(2) An application for a review under this section must be made 12
within the period prescribed by the regulations. 13
(3) The review must be carried out: 14
(a) if the determination was made by the council, by the 15
council, or 16
(b) if the determination was made by a delegate of the council, 17
by the council or a delegate of the council who is not 18
subordinate to the delegate who made the determination. 19
(4) An applicant may amend the development the subject of the 20
original application. 21
(5) The prescribed fee must be paid in connection with a review 22
application. 23
(6) An application for a review under this section cannot be made if 24
an appeal has been made against the determination under section 25
97. 26
96E Applications for review--objectors 27
(1) This section applies to development applications of a class 28
prescribed by the regulations for the purposes of this section. 29
(2) Without limiting subsection (1), a class of development 30
application may be described by reference to whether, or to what 31
extent, the relevant development fails to meet any applicable 32
development standards. 33
(3) A person (an objector) may make an application under this 34
section if: 35
(a) the person is not an applicant and has made a submission 36
objecting to the development in accordance with 37
regulations made under section 79AA, and 38
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(b) the person owns land within 1 kilometre of any point on 1
the boundary of the land the subject of the development 2
application or is currently occupying any such land and has 3
been an occupant for at least 6 months. 4
(4) An objector who is dissatisfied with a determination of a council 5
to grant consent to a development application either 6
unconditionally or subject to conditions may apply to the 7
applicable regional panel for a review of the determination. 8
(5) An objector who is dissatisfied with a determination of a regional 9
panel to grant consent to a development application either 10
unconditionally or subject to conditions may apply to the 11
Commission for a review of the determination. 12
(6) An application for a review of a determination under this section 13
must be made within 28 days after the date on which notice of the 14
determination was given in accordance with the regulations. 15
(7) An applicant may amend the development the subject of the 16
original application. 17
(8) The prescribed fee must be paid in connection with a review 18
application. 19
(9) The regulations may limit the persons who are qualified to apply 20
for reviews under this section. 21
(10) This section does not apply to planning arbitrator matters or to the 22
following development applications: 23
(a) a development application in relation to which an appeal 24
may be made by an objector under section 98, 25
(b) a development application relating to integrated 26
development, 27
(c) a Crown development application (within the meaning of 28
Division 4). 29
96F Notification of review applications 30
(1) A council, a regional panel or the Commission must notify a 31
review application in accordance with the regulations, if the 32
regulations so require. 33
(2) The regulations may provide that a person given notice under this 34
section is entitled to be heard on the review application. 35
96G Procedures for reviews and determinations--applicant and 36
objector reviews 37
(1) A review under this Division by a reviewing body: 38
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Schedule 2 Amendments relating to development assessment
(a) must be held within the period prescribed by the 1
regulations and must be determined within the period 2
prescribed by the regulations, and 3
(b) is to be conducted in accordance with the regulations (if 4
any) or any procedures determined by the Minister. 5
(2) Before determining a review application, the reviewing body 6
must consider any submissions made concerning the request for 7
review within any period prescribed by the regulations. 8
(3) The reviewing body may consider additional matters not 9
considered by the consent authority in determining the original 10
application. 11
(4) If the applicant has made amendments to the development 12
described in the original application, the reviewing body may 13
only conduct a review of a determination of a development 14
application if satisfied that the development, as amended, is 15
substantially the same development as the development 16
described in the original application. 17
(5) If an appeal is made under section 97 in respect of a reviewable 18
determination that is already the subject of a review application 19
under section 96C or 96D, the determination cannot be reviewed 20
after the determination is disposed of by the Court. 21
Note. A review application may not be made under section 96C or 96D 22
if an appeal has already been made to the Court. 23
(6) If review applications concerning the same matter are made 24
under sections 96D and 96E, the applications are to be dealt with 25
together and determined by the regional panel reviewing the 26
application under section 96E. A council may not determine a 27
review application under section 96D if an application 28
concerning the same matter is made under section 96E. 29
96H Review bodies to have consent authority functions for review 30
(1) A reviewing body has the same functions as the consent authority 31
had, in relation to the original determination or application, for 32
the purposes of determining a review application. 33
(2) A decision by a reviewing body in determining a review 34
application is taken for all purposes to be the decision of the 35
consent authority. 36
(3) This section has effect even if the appointment of a reviewing 37
body or a member of a reviewing body is subsequently found not 38
to have been validly made. 39
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96I Review of unaccepted applications by planning arbitrators 1
(1) If a planning arbitrator determines that a development application 2
that was not accepted by a council should have been dealt with by 3
the council, the planning arbitrator must refer the application to 4
the council for determination. 5
(2) The council must determine an application that is referred to it 6
under this section. 7
96J Decisions on reviews and determinations 8
(1) The reviewing body must, in accordance with the regulations, 9
give notice of the result of its determination of a review 10
application: 11
(a) to the person who applied for the review, and 12
(b) if the person was not the applicant for the determination 13
reviewed, to the applicant, and 14
(c) in the case of a development application in respect of 15
which a person other than the applicant may make a review 16
application (a third party matter), each person who made 17
a submission to the consent authority in accordance with 18
regulations made under section 79AA. 19
(2) In the case of a third party matter, the reviewing body must also 20
notify each person who made a submission by way of objection 21
of the person's rights to appeal against the determination and of 22
the applicant's rights to appeal against the determination. 23
(3) If the reviewing body grants development consent, or varies the 24
conditions of a development consent or otherwise modifies a 25
development consent, the reviewing body must endorse on the 26
notice the date from which the consent, or the consent as varied, 27
operates. 28
(4) If the reviewing body changes a determination, the changed 29
determination replaces the earlier determination as from the date 30
of the review. 31
(5) If on a review under section 96C or 96D the council grants 32
development consent, or varies the conditions of a development 33
consent, the council is entitled, with the consent of the applicant 34
and without prejudice to costs, to have an appeal made under 35
section 97 in respect of its determination withdrawn at any time 36
prior to the determination of that appeal. 37
(6) A decision on a review application may not be further reviewed 38
by a reviewing body under this Division. 39
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(7) Subsection (5) does not prevent a review of a determination of a 1
development application by a council following a decision by a 2
planning arbitrator that the council must determine the 3
application. 4
96K Circumstances in which review application is taken to have been 5
refused 6
(1) A planning arbitrator that has not determined a review 7
application within the period prescribed for the purposes of 8
section 96G (1) is, for the purpose only of section 97, taken to 9
have determined the application by refusing consent on the date 10
on which the period expires. 11
(2) If a planning arbitrator is not appointed to determine a planning 12
arbitrator matter within the period prescribed by the regulations, 13
the application for the review is, for the purpose only of section 14
97, taken to have been determined by refusing consent on the date 15
on which the period expires. 16
(3) Nothing in subsection (1) or (2) prevents a planning arbitrator 17
from determining a review application after the relevant period 18
on a review under this Division. 19
(4) A determination pursuant to subsection (3) does not, subject to 20
subsection (5), prejudice or affect the continuance or 21
determination of an appeal made under section 97 in respect of a 22
determination that is taken by subsection (1) or (2) to have been 23
made. 24
(5) If a determination pursuant to subsection (3) is made by granting 25
consent, the consent authority is entitled, with the consent of the 26
applicant and without prejudice to costs, to have an application 27
for review made before that consent in respect of a failure to 28
determine the matter withdrawn at any time prior to the 29
determination of that application or appeal. 30
Note. An appeal under section 97 may also be withdrawn, see section 31
96I (5). 32
96L Improper influence with respect to conduct of planning arbitrator 33
(1) A planning arbitrator must not, on an understanding that he or she 34
will act otherwise than impartially in the exercise of his or her 35
functions as a planning arbitrator, seek or accept, or offer or agree 36
to accept, any benefit of any kind, whether on his or her own 37
behalf or on behalf of any other person. 38
Maximum penalty: 10,000 penalty units or imprisonment for 2 39
years, or both. 40
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(2) A person must not, on an understanding that a planning arbitrator 1
will act otherwise than impartially in the exercise of his or her 2
functions as a planning arbitrator, give, or offer or agree to give, 3
any benefit of any kind, whether to the planning arbitrator or to 4
any other person. 5
Maximum penalty: 10,000 penalty units or imprisonment for 2 6
years, or both. 7
[37] Sections 9797B 8
Omit section 97. Insert instead: 9
97 Appeal by an applicant--development applications 10
(1) Development application determinations (other than planning 11
arbitrator matters) 12
An applicant who is dissatisfied with the determination of a 13
consent authority with respect to the applicant's development 14
application (other than in relation to a planning arbitrator matter), 15
including a determination on a review under section 96D, may 16
appeal to the Court within 3 months after: 17
(a) the date on which the applicant received notice, given in 18
accordance with the regulations, of the determination of 19
that application, or 20
(b) the date on which that application is taken to have been 21
determined under section 82 (1). 22
(2) Determinations as to modifications of consents (other than 23
planning arbitrator matters) 24
An applicant who is dissatisfied with the determination of a 25
consent authority with respect to the applicant's application 26
under section 96 or 96AA (other than in relation to a planning 27
arbitrator matter) may appeal to the Court within 3 months after: 28
(a) the date on which the applicant received notice, given in 29
accordance with the regulations, of the determination of 30
that application, or 31
(b) the date on which the applicant's application is taken to 32
have been determined in accordance with regulations 33
made under section 96 (6) or 96AA (3). 34
(3) Determinations relating to ancillary aspects of consent (other 35
than planning arbitrator matters) 36
An applicant who is dissatisfied with a decision (other than in 37
relation to a planning arbitrator matter) that a consent authority, 38
or a person specified by the consent authority, is not satisfied 39
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(pursuant to a condition imposed under section 80A (2)) as to a 1
specified aspect of the development that is to be carried out to the 2
satisfaction of the consent authority or person may appeal to the 3
Court within 3 months after: 4
(a) the consent authority or person notifies the applicant of its 5
decision, or 6
(b) the date on which the applicant's request is taken to have 7
been determined under section 80A (3). 8
(4) Determinations relating to deferred consents (other than 9
planning arbitrator matters) 10
An applicant who is dissatisfied with a decision (other than in 11
relation to a planning arbitrator matter) that a consent authority is 12
not satisfied as to a matter that it must be satisfied about before a 13
"deferred commencement" consent under section 80 (3) can 14
operate may appeal to the Court within 3 months after the consent 15
authority notifies the applicant of its decision. 16
(5) Planning arbitrator matters where consent authority consents 17
to appeal 18
An applicant in a planning arbitrator matter who is dissatisfied 19
with the determination of a consent authority with respect to the 20
matter may, with the consent of the consent authority, appeal to 21
the Court within 3 months after: 22
(a) the date on which the applicant received notice, given in 23
accordance with the regulations, of the determination of 24
the matter, or 25
(b) the date on which the matter is taken to have been 26
determined under an applicable provision of this Act or the 27
regulations. 28
(6) Determinations by planning arbitrators 29
An applicant in a planning arbitrator matter who is dissatisfied 30
with the determination of a planning arbitrator with respect to the 31
matter may appeal to the Court within 3 months after: 32
(a) the date on which the applicant received notice, given in 33
accordance with the regulations, of the determination of 34
the planning arbitrator, or 35
(b) the date on which the applicant's application is taken to 36
have been determined under section 96K. 37
(7) Appeals to be heard after expiry of objector appeal period 38
An appeal under this section relating to a development 39
application for consent to carry out designated development or 40
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development in respect of which a review application may be 1
made under section 96E, in respect of which an objection has 2
been made in accordance with the regulations, must not be heard 3
by the Court until after the expiration of the time within which an 4
objector may appeal to the Court under that section or make a 5
review application. 6
(8) Interpretation 7
Words and expressions used in this section have the same 8
meaning as they have in Division 7A. 9
97A Notice of appeals to be given and right to be heard 10
(1) The consent authority must give notice of an appeal under section 11
97: 12
(a) to an objector, in the case of an appeal concerning a 13
development application in respect of which the objector 14
may appeal under section 98 or make a review application 15
under section 96E, or 16
(b) to the relevant Minister or public authority, in the case of 17
an appeal concerning a development application in relation 18
to which the concurrence of a Minister or public authority 19
is required under this Act, or 20
(c) to the relevant approval body (within the meaning of 21
Division 5), in the case of a development application for 22
consent to carry out integrated development that involves 23
the approval body. 24
(2) A person or body who is given notice of an appeal under this 25
section is, on application made to the Court in accordance with 26
rules of court within 28 days after the date of the notice, entitled 27
to be heard at the hearing of the appeal as if the person or body 28
were a party to the appeal. 29
97B Costs payable if amended development application filed 30
(1) This section applies to proceedings if the Court, on an appeal by 31
an applicant under section 97 allows the applicant to file an 32
amended development application (other than to make a minor 33
amendment). 34
(2) In any proceedings to which this section applies, the Court must 35
make an order for the payment by the applicant of those costs of 36
the consent authority that were incurred in respect of the 37
assessment of, and proceedings relating to, the original 38
development application the subject of the appeal. 39
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(3) The regulations may provide for circumstances in which 1
subsection (2) does not apply. 2
(4) This section has effect despite the provisions of any other Act or 3
law. 4
[38] Section 99 Joint hearing of certain appeals 5
Insert after section 99 (3): 6
(4) If an appeal is made under section 97 with respect to a 7
development application and a review application is made under 8
section 96E with respect to the same application, the review 9
application is to be dealt with by the Court as if it were an appeal 10
under section 98 and is, as far as practicable, to be heard together 11
with the appeal under section 97. 12
[39] Section 118 Appointment of planning administrator, planning 13
assessment panel or regional panel 14
Omit "or a panel (or both)" from section 118 (1). 15
Insert instead ", a planning assessment panel or a regional panel (or all of 16
them)". 17
[40] Section 118 (3) 18
Omit "panel". Insert instead "planning assessment panel or regional panel". 19
[41] Section 118 (3) (a) 20
Omit "under Part 4". 21
[42] Section 118 (3) (b) 22
Insert "or under Division 1 of Part 2 of Chapter 6 of the Local Government Act 23
1993" after "Part 3". 24
[43] Section 118 (4) 25
Omit "panel". Insert instead "planning assessment panel or regional panel". 26
[44] Section 118 (5) and (7) 27
Omit "panel" wherever occurring. Insert instead "planning assessment panel". 28
[45] Section 118 (7A)(7C) 29
Insert after section 118 (7): 30
(7A) Functions are to be conferred on a regional panel under this 31
section by order of the Minister published in the Gazette. 32
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(7B) Before appointing a planning administrator or planning 1
assessment panel, or conferring functions under this section on a 2
regional panel, the Minister must notify the council concerned in 3
writing of the proposed action (including the reasons for the 4
proposed action) and request the council to show cause why the 5
action should not be taken. 6
(7C) The Minister must consider any written submissions made by the 7
council within 21 days of notice being given under subsection 8
(7B) and must not take action under this section earlier than 21 9
days after the notice is given. 10
[46] Section 118 (8) 11
Omit "panel". 12
Insert instead "a planning assessment panel, or conferring functions on a 13
regional panel under this section". 14
[47] Section 118 (9) 15
Omit "panel". 16
Insert instead "planning assessment panel, or confer functions on a regional 17
panel under this section,". 18
[48] Section 118 (9) 19
Omit "those heads of consideration". 20
Insert instead "any of those heads of consideration that are relevant". 21
[49] Section 118 (10) 22
Omit "make an appointment under subsection (1) (d)". 23
Insert instead "take action under this section in the circumstances specified in 24
subsection (1) (d)". 25
[50] Section 118 (11) 26
Omit "panel". 27
Insert instead "planning assessment panel, or conferring functions on a 28
regional panel under this section". 29
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[51] Section 118 (12), definition of "failure to comply with obligations under 1
the planning legislation" 2
Insert at the end of paragraph (b): 3
, or 4
(c) without limiting paragraph (a), a failure to comply with a 5
determination under section 56, or 6
(d) without limiting paragraph (a), a failure to provide access 7
to and the use of staff and facilities to the Planning 8
Assessment Commission, a joint regional planning panel 9
or a planning arbitrator as referred to in section 23N (1). 10
[52] Section 118AD Council to assist planning administrator or panel 11
Insert after section 118AD (2): 12
(2A) The general manager of a council must carry out any reasonable 13
direction of the planning administrator or planning assessment 14
panel relating to functions of the council being exercised by the 15
planning administrator or panel. 16
Maximum penalty: 10 penalty units. 17
[53] Section 118AG 18
Insert after section 118AF: 19
118AG Protection for exercise of certain functions by Minister 20
(1) This section applies to any function (a protected function) 21
conferred or imposed on the Minister (including a delegate of the 22
Minister) relating to the appointment of a planning administrator 23
or planning assessment panel, or the conferral of functions on a 24
regional panel, under this Division. 25
(2) The exercise by the Minister of any protected function may not 26
be: 27
(a) challenged, reviewed, quashed or called into question 28
before any court of law or administrative review body in 29
any proceedings, or 30
(b) restrained, removed or otherwise affected by any 31
proceedings. 32
(3) Without limiting subsection (2), that subsection applies whether 33
or not the proceedings relate to any question involving 34
compliance or non-compliance, by the Minister (including a 35
delegate of the Minister), with the provisions of this Division or 36
the rules of natural justice (procedural fairness). 37
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(4) Accordingly, no court of law or administrative review body has 1
jurisdiction or power to consider any question involving 2
compliance or non-compliance, by the Minister (including a 3
delegate of the Minister), with those provisions or with those 4
rules so far as they apply to the exercise of any protected 5
function. 6
(5) This section has effect despite any provision of this Act or other 7
legislation or any other law (whether written or unwritten). 8
(6) In this section: 9
exercise of functions includes: 10
(a) the purported exercise of functions, and 11
(b) the non-exercise or improper exercise of functions, and 12
(c) the proposed, apprehended or threatened exercise of 13
functions. 14
proceedings includes: 15
(a) proceedings for an order under section 124, and 16
(b) proceedings for an order in the nature of prohibition, 17
certiorari or mandamus or for a declaration or injunction or 18
for any other relief, and 19
(c) without limiting paragraph (b), proceedings in the exercise 20
of the inherent jurisdiction of the Supreme Court or the 21
jurisdiction conferred by section 23 of the Supreme Court 22
Act 1970. 23
[54] Section 158 Exclusion of personal liability 24
Omit section 158 (d)(g). Insert instead: 25
(d) a member of the Planning Assessment Commission, a joint 26
regional planning panel or an independent hearing and 27
assessment panel, or 28
(e) a planning arbitrator, or 29
(f) any person acting under the direction of a person or body 30
referred to in paragraph (a)(e), 31
[55] Section 158 32
Omit "the Commissioner of Inquiry". 33
Insert instead "a planning arbitrator, a member". 34
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[56] Schedules 3 and 4 1
Omit Schedules 3 and 5. Insert instead: 2
Schedule 3 Planning Assessment Commission 3
(Section 23B (5)) 4
Part 1 General 5
1 Definitions 6
In this Part: 7
chairperson means the person appointed by the Minister as the 8
chairperson of the Commission. 9
Commission means the Planning Assessment Commission. 10
member means a member of the Commission. 11
Part 2 Members 12
2 Members 13
(1) The Commission is to consist of the chairperson and not less than 14
3 members and not more than 8 members appointed by the 15
Minister. 16
(2) One member of the Commission is, in the instrument of 17
appointment, to be appointed as chairperson of the Commission. 18
(3) Each member is to have expertise in at least 1 of planning, 19
architecture, heritage, the environment, urban design, land 20
economics, traffic and transport, law, engineering, tourism or 21
government and public administration. 22
(4) In appointing a member of the Commission, the Minister is to 23
have regard to the need to have a range of expertise represented 24
among the Commission's members. 25
3 Additional casual members 26
The Minister may appoint additional members of the 27
Commission for the purposes of exercising specific functions of 28
the Commission. A casual member is not required to have 29
expertise in an area referred to in clause 2 but is required to have 30
expertise in an area relevant to the functions the member is to 31
exercise. 32
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4 Constitution of Commission for particular matters 1
(1) For the purpose of carrying out any of its functions, the 2
Commission is to be constituted by 3 members. The regulations 3
may prescribe circumstances in which the Commission may be 4
constituted by more than 3 members or less than 3 members. 5
(2) The members for the purpose of exercising a function of the 6
Commission are, subject to any directions of the Minister, to be 7
determined by the chairperson. 8
(3) The Commission may, at any time, exercise by the same 9
members or different members, one or more of its functions. 10
(4) For the purpose of exercising any of its functions, the 11
Commission is to be constituted by specified members, or 12
members with specified qualifications or expertise, if a direction 13
to that effect is given by the Minister. 14
5 Terms of office of members 15
(1) Subject to this Part and the regulations, a member holds office for 16
such period (not exceeding 3 years) as is specified in the 17
member's instrument of appointment. 18
(2) The period under subclause (1) may be determined by reference 19
to the occurrence of a specified event or the completion of the 20
exercise of particular functions of the Commission. 21
(3) A member is eligible to be re-appointed. 22
6 Basis of office 23
(1) The office of chairperson may be a full-time or a part-time office. 24
(2) The office of any other member is a part-time office. 25
7 Remuneration 26
A member is entitled to be paid such remuneration (including 27
travelling and subsistence allowances) as the Minister may from 28
time to time determine in respect of the member. 29
8 Vacancy in office of member 30
(1) The office of a member becomes vacant if the member: 31
(a) dies, or 32
(b) completes a term of office and is not re-appointed, or 33
(c) resigns the office by instrument in writing addressed to the 34
Minister, or 35
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Schedule 2 Amendments relating to development assessment
(d) is removed from office by the Governor under Chapter 5 1
of the Public Sector Employment and Management Act 2
2002, or 3
(e) is absent from 3 consecutive meetings of the Commission 4
of which reasonable notice has been given to the member 5
personally or by post, except on leave granted by the 6
Commission or unless the member is excused by the 7
Commission for having been absent from those meetings, 8
or 9
(f) becomes bankrupt, applies to take the benefit of any law 10
for the relief of bankrupt or insolvent debtors, compounds 11
with his or her creditors or makes an assignment of his or 12
her remuneration for their benefit, or 13
(g) becomes a mentally incapacitated person, or 14
(h) is convicted in New South Wales of an offence that is 15
punishable by imprisonment for 12 months or more or is 16
convicted elsewhere than in New South Wales of an 17
offence that, if committed in New South Wales, would be 18
an offence so punishable. 19
(2) The Minister may remove a member from office if the 20
Independent Commission Against Corruption, in a report 21
referred to in section 74C of the Independent Commission 22
Against Corruption Act 1988, recommends that consideration be 23
given to the removal of the member from office because of 24
corrupt conduct by the member. 25
9 Filling of vacancy in office of member 26
If the office of a member becomes vacant, a person may, subject 27
to this Act and the regulations, be appointed to fill the vacancy. 28
10 Chairperson 29
The chairperson vacates office as chairperson if he or she: 30
(a) is removed from that office by the Minister, or 31
(b) resigns that office by instrument in writing addressed to 32
the Minister, or 33
(c) ceases to be a member of the Commission. 34
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11 Disclosure of pecuniary interests 1
(1) If: 2
(a) a member has a pecuniary interest in a matter being 3
considered or about to be considered at a meeting of the 4
Commission, and 5
(b) the interest appears to raise a conflict with the proper 6
performance of the member's duties in relation to the 7
consideration of the matter, 8
the member must, as soon as possible after the relevant facts have 9
come to the member's knowledge, disclose the nature of the 10
interest at a meeting of the Commission. 11
(2) A member has a pecuniary interest in a matter if the pecuniary 12
interest is the interest of: 13
(a) the member, or 14
(b) the member's spouse or de facto partner or a relative of the 15
member, or a partner or employer of the member, or 16
(c) a company or other body of which the member, or a 17
nominee, partner or employer of the member, is a member. 18
(3) However, a member is not taken to have a pecuniary interest in a 19
matter as referred to in subclause (2) (b) or (c): 20
(a) if the member is unaware of the relevant pecuniary interest 21
of the spouse, de facto partner, relative, partner, employer 22
or company or other body, or 23
(b) just because the member is a member of, or is employed 24
by, a council or a statutory body or is employed by the 25
Crown, or 26
(c) just because the member is a member of, or a delegate of a 27
council to, a company or other body that has a pecuniary 28
interest in the matter, so long as the member has no 29
beneficial interest in any shares of the company or body. 30
(4) A disclosure by a member at a meeting of the Commission that 31
the member, or a spouse, de facto partner, relative, partner or 32
employer of the member: 33
(a) is a member, or is in the employment, of a specified 34
company or other body, or 35
(b) is a partner, or is in the employment, of a specified person, 36
or 37
(c) has some other specified interest relating to a specified 38
company or other body or to a specified person, 39
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Schedule 2 Amendments relating to development assessment
is a sufficient disclosure of the nature of the interest in any matter 1
relating to that company or other body or to that person which 2
may arise after the date of the disclosure and which is required to 3
be disclosed under subclause (1). 4
(5) Particulars of any disclosure made under this clause must be 5
recorded by the Commission in a book kept for the purpose and 6
that book must be open at all reasonable hours to inspection by 7
any person on payment of the fee determined by the Commission. 8
(6) After a member has disclosed the nature of an interest in any 9
matter, the member must not, unless the Minister or the 10
Commission otherwise determines: 11
(a) be present during any deliberation of the Commission with 12
respect to the matter, or 13
(b) take part in any decision of the Commission with respect 14
to the matter. 15
(7) For the purposes of the making of a determination by the 16
Commission under subclause (6), a member who has a direct or 17
indirect pecuniary interest in a matter to which the disclosure 18
relates must not: 19
(a) be present during any deliberation of the Commission for 20
the purpose of making the determination, or 21
(b) take part in the making by the Commission of the 22
determination. 23
(8) A contravention of this clause does not invalidate any decision of 24
the Commission. 25
12 Effect of certain other Acts 26
(1) Chapter 2 of the Public Sector Employment and Management Act 27
2002 does not apply to or in respect of the appointment of a 28
member. 29
(2) If by or under any Act provision is made: 30
(a) requiring a person who is the holder of a specified office to 31
devote the whole of his or her time to the duties of that 32
office, or 33
(b) prohibiting the person from engaging in employment 34
outside the duties of that office, 35
the provision does not operate to disqualify the person from 36
holding that office and also the office of a member or from 37
accepting and retaining any remuneration payable to the person 38
under this Act as a member. 39
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Schedule 4 Joint Regional Planning Panels 1
(Section 23G (6)) 2
Part 1 General 3
1 Definitions 4
In this Part: 5
applicable council means the council of an area that is situated 6
(wholly or partly) in a part of the State for which a regional panel 7
is appointed. 8
chairperson means the person appointed by the Minister as the 9
chairperson of a joint regional planning panel. 10
council nominee means a person nominated as a member of a 11
regional panel by an applicable council. 12
member means a member of a regional panel. 13
regional panel means a joint regional planning panel. 14
State member means a member appointed by the Minister. 15
Part 2 Members 16
2 Members 17
(1) A regional panel is to consist of the following 5 members: 18
(a) 3 persons appointed by the Minister, each having expertise 19
in at least 1 of planning, architecture, heritage, the 20
environment, urban design, land economics, traffic and 21
transport, law, engineering, tourism or government and 22
public administration, 23
(b) 2 council nominees of an applicable council, at least one of 24
whom has expertise in planning, architecture, heritage, the 25
environment, urban design, land economics, traffic and 26
transport, law, engineering or tourism. 27
(2) One State member is, in the instrument of appointment, to be 28
appointed as chairperson of the regional panel. 29
(3) In appointing a State member, the Minister is to have regard to 30
the need to have a range of expertise represented among the 31
panel's members. 32
(4) Each applicable council is to nominate 2 persons as council 33
nominees for the purposes of the regional panel, at least one of 34
whom has expertise in planning, architecture, heritage, the 35
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Schedule 2 Amendments relating to development assessment
environment, urban design, land economics, traffic and transport, 1
law, engineering or tourism. 2
(5) If an applicable council fails to nominate 1 or more council 3
nominees, a regional panel is not required to include 2 council 4
nominees for the purposes of exercising its functions in relation 5
to the area of the council concerned. 6
3 Rotation of council nominees 7
(1) For the purposes of exercising the functions of a regional panel in 8
relation to a matter, the council nominees appointed to the 9
regional panel are to be those nominated by the applicable 10
council for the land to which the matter relates. 11
(2) Subject to this Part, a council nominee remains eligible to 12
participate as a member of the regional panel for such period (not 13
exceeding 3 years) as is specified in the nominee's instrument of 14
nomination, but is eligible (if otherwise qualified) for 15
re-nomination. 16
4 Terms of office of State members 17
(1) Subject to this Part, a State member holds office for such period 18
(not exceeding 3 years) as is specified in the member's 19
instrument of appointment, but is eligible (if otherwise qualified) 20
for re-appointment. 21
(2) The period under subclause (1) may be determined by reference 22
to the occurrence of a specified event. 23
5 Basis of office 24
The office of a member is a part-time office. 25
6 Remuneration 26
A member is entitled to be paid such remuneration (including 27
travelling and subsistence allowances) as the Minister may from 28
time to time determine in respect of the member. 29
7 Deputy chairperson 30
(1) The members of a regional panel may elect a State member to be 31
the deputy chairperson of the regional panel. 32
(2) The person may be elected for the duration of the person's term 33
of office as a member or for a shorter term. 34
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8 Alternates 1
(1) The Minister may, from time to time, appoint a person to be the 2
alternate of a State member, and may revoke any such 3
appointment. 4
(2) An applicable council may, from time to time, appoint a person 5
to be the alternate of a member nominated by the council, and 6
may revoke any such appointment. 7
(3) In the absence of a member, the member's alternate may, if 8
available, act in the place of the member. 9
(4) While acting in the place of a member, a person has all the 10
functions of the member and is taken to be a member. 11
(5) A person while acting in the place of a member is entitled to be 12
paid such remuneration (including travelling and subsistence 13
allowances) as the Minister may from time to time determine in 14
respect of the person. 15
(6) A person may be appointed as the alternate of 2 or more 16
members, but has only one vote at any meeting of the regional 17
panel. 18
9 Vacancy in office of member 19
(1) The office of a member becomes vacant if the member: 20
(a) dies, or 21
(b) completes a term of office and is not re-appointed, or 22
(c) resigns the office by instrument in writing addressed to the 23
Minister or applicable council, as the case requires, or 24
(d) in the case of a council nominee, is removed from office by 25
an applicable council under this clause or by the Minister 26
under subclause (2), or 27
(e) in the case of a State member, is removed from office by 28
the Minister or by the Governor under Chapter 5 of the 29
Public Sector Employment and Management Act 2002, or 30
(f) is absent from 3 consecutive meetings of the regional panel 31
of which reasonable notice has been given to the member 32
personally or by post, except on leave granted by the panel 33
or unless the member is excused by the panel for having 34
been absent from those meetings, or 35
(g) becomes bankrupt, applies to take the benefit of any law 36
for the relief of bankrupt or insolvent debtors, compounds 37
with his or her creditors or makes an assignment of his or 38
her remuneration for their benefit, or 39
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Schedule 2 Amendments relating to development assessment
(h) becomes a mentally incapacitated person, or 1
(i) is convicted in New South Wales of an offence that is 2
punishable by imprisonment for 12 months or more or is 3
convicted elsewhere than in New South Wales of an 4
offence that, if committed in New South Wales, would be 5
an offence so punishable. 6
(2) The Minister may remove a member from office if the 7
Independent Commission Against Corruption, in a report 8
referred to in section 74C of the Independent Commission 9
Against Corruption Act 1988, recommends that consideration be 10
given to the removal of the member from office because of 11
corrupt conduct by the member. 12
(3) The Minister may remove a State member from office for any or 13
no reason and without notice. 14
(4) An applicable council may remove any of its council nominees 15
from office for any or no reason and without notice. 16
10 Filling of vacancy in office of member 17
If the office of a member becomes vacant, a person may, subject 18
to this Act and the regulations, be appointed to fill the vacancy. 19
11 Chairperson 20
(1) The chairperson vacates office as chairperson if he or she: 21
(a) is removed from that office by the Minister, or 22
(b) resigns that office by instrument in writing addressed to 23
the Minister, or 24
(c) ceases to be a member of the regional panel. 25
(2) The Minister may at any time remove the chairperson from office 26
as chairperson for any or no reason and without notice. 27
12 Disclosure of pecuniary interests 28
(1) If: 29
(a) a member has a pecuniary interest in a matter being 30
considered or about to be considered at a meeting of the 31
regional panel, and 32
(b) the interest appears to raise a conflict with the proper 33
performance of the member's duties in relation to the 34
consideration of the matter, 35
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the member must, as soon as possible after the relevant facts have 1
come to the member's knowledge, disclose the nature of the 2
interest at a meeting of the regional panel. 3
(2) A member has a pecuniary interest in a matter if the pecuniary 4
interest is the interest of: 5
(a) the member, or 6
(b) the member's spouse or de facto partner or a relative of the 7
member, or a partner or employer of the member, or 8
(c) a company or other body of which the member, or a 9
nominee, partner or employer of the member, is a member. 10
(3) However, a member is not taken to have a pecuniary interest in a 11
matter as referred to in subclause (2) (b) or (c): 12
(a) if the member is unaware of the relevant pecuniary interest 13
of the spouse, de facto partner, relative, partner, employer 14
or company or other body, or 15
(b) just because the member is a member of, or is employed 16
by, a council or a statutory body or is employed by the 17
Crown, or 18
(c) just because the member is a member of, or a delegate of a 19
council to, a company or other body that has a pecuniary 20
interest in the matter, so long as the member has no 21
beneficial interest in any shares of the company or body. 22
(4) A disclosure by a member at a meeting of the regional panel that 23
the member, or a spouse, de facto partner, relative, partner or 24
employer of the member: 25
(a) is a member, or is in the employment, of a specified 26
company or other body, or 27
(b) is a partner, or is in the employment, of a specified person, 28
or 29
(c) has some other specified interest relating to a specified 30
company or other body or to a specified person, 31
is a sufficient disclosure of the nature of the interest in any matter 32
relating to that company or other body or to that person which 33
may arise after the date of the disclosure and which is required to 34
be disclosed under subclause (1). 35
(5) Particulars of any disclosure made under this clause must be 36
recorded by the regional panel in a book kept for the purpose and 37
that book must be open at all reasonable hours to inspection by 38
any person on payment of the fee determined by the regional 39
panel. 40
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Schedule 2 Amendments relating to development assessment
(6) After a member has disclosed the nature of an interest in any 1
matter, the member must not, unless the Minister or the regional 2
panel otherwise determines: 3
(a) be present during any deliberation of the panel with respect 4
to the matter, or 5
(b) take part in any decision of the panel with respect to the 6
matter. 7
(7) For the purposes of the making of a determination by the regional 8
panel under subclause (6), a member who has a direct or indirect 9
pecuniary interest in a matter to which the disclosure relates must 10
not: 11
(a) be present during any deliberation of the panel for the 12
purpose of making the determination, or 13
(b) take part in the making by the panel of the determination. 14
(8) A contravention of this clause does not invalidate any decision of 15
the regional panel. 16
13 Effect of certain other Acts 17
(1) Chapter 2 of the Public Sector Employment and Management Act 18
2002 does not apply to or in respect of the appointment of a 19
member. 20
(2) If by or under any Act provision is made: 21
(a) requiring a person who is the holder of a specified office to 22
devote the whole of his or her time to the duties of that 23
office, or 24
(b) prohibiting the person from engaging in employment 25
outside the duties of that office, 26
the provision does not operate to disqualify the person from 27
holding that office and also the office of a member or from 28
accepting and retaining any remuneration payable to the person 29
under this Act as a member. 30
2.2 Consequential amendments to Environmental Planning and 31
Assessment Act 1979 32
[1] Part 2, Division 4 33
Omit the Division. 34
[2] Section 75G Independent hearing and assessment panels 35
Omit the section. 36
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Amendments relating to development assessment Schedule 2
[3] Section 75I Director-General's environmental assessment report 1
Omit "a panel constituted under section 75G" from section 75I (2) (c). 2
Insert instead "the Planning Assessment Commission". 3
[4] Section 75J Giving of approval by Minister to carry out project 4
Omit section 75J (2) (c). Insert instead: 5
(c) any findings or recommendations of the Planning 6
Assessment Commission following a review in respect of 7
the project. 8
[5] Section 75K Appeals by proponent 9
Omit section 75K (1) (c). Insert instead: 10
(c) the project has not been the subject of a review by the 11
Planning Assessment Commission, and 12
[6] Section 75L Appeals by an objector 13
Omit section 75L (1) (c). Insert instead: 14
(c) the project has not been the subject of a review by the 15
Planning Assessment Commission, and 16
[7] Section 75N Environmental assessment, public consultation and 17
Director-General's report for concept plan 18
Omit ", 75G (Independent hearing and assessment panels)". 19
[8] Section 75O Giving of approval for concept plan 20
Omit section 75O (2) (c). Insert instead: 21
(c) any findings or recommendations of the Planning 22
Assessment Commission following a review in respect of 23
the project. 24
[9] Section 75Q Appeal by proponent 25
Omit section 75Q (1) (c). Insert instead: 26
(c) the project has not been the subject of a review by the 27
Planning Assessment Commission, and 28
[10] Section 75S Erection and occupation of buildings and subdivision of 29
land 30
Omit section 75S (3). Insert instead: 31
(3) Section 109R applies to an approved project, but section 109S 32
does not apply. 33
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[11] Section 75X Miscellaneous provisions relating to approvals under this 1
Part 2
Omit "an inquiry held in accordance with section 119 or of a report of a panel 3
of experts under section 75G" from section 75X (1). 4
Insert instead "a review by the Planning Assessment Commission". 5
[12] Section 80 Determination 6
Omit "Commission of Inquiry" from the heading to section 80 (6). 7
Insert instead "Planning Assessment Commission review". 8
[13] Section 80 (6) 9
Omit "directed that an inquiry be held, in accordance with section 119,". 10
Insert instead "requested that a review be held by the Planning Assessment 11
Commission". 12
[14] Section 80 (6) (b) (i) 13
Omit "inquiry". Insert instead "review". 14
[15] Sections 80 (6) (b) (ii), 112 (1) (d) and 114 (a) and (b) 15
Omit "Commission of Inquiry" wherever occurring. 16
Insert instead "Planning Assessment Commission". 17
[16] Section 80 (7) 18
Omit section 80 (7) and (8). Insert instead: 19
(7) If the Minister has requested that a review be held by the Planning 20
Assessment Commission in relation to any proposed designated 21
development the subject of a development application, the 22
Minister is to determine the application after the review has been 23
held and the Minister has considered the findings and 24
recommendations of the Commission. 25
[17] Section 81 Post-determination notification 26
Omit section 81 (1) (b). Insert instead: 27
(b) in the case of a development application for consent to 28
carry out designated development or development in 29
respect of which a review application may be made under 30
section 96E, each objector, and 31
[18] Section 81 (3) and (4) 32
Omit section 81 (3). Insert instead: 33
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(3) In the case of a development application for consent to carry out 1
designated development or development in respect of which a 2
review application may be made under section 96E, the consent 3
authority must also notify each objector of the objector's rights to 4
appeal against the determination and of the applicant's rights to 5
appeal against the determination. 6
(4) In this section: 7
appeal includes make a review application under Division 7A. 8
objector means a person who has made a submission by way of 9
objection under section 79 (5) or under regulations made under 10
section 79AA. 11
[19] Section 81A Effects of development consents and commencement of 12
development 13
Omit "section 116G" from section 81A (6). Insert instead "section 109R". 14
[20] Section 82 Circumstances in which consent is taken to have been 15
refused 16
Omit "section 97" from section 82 (1). Insert instead "section 96C, 96D or 97". 17
[21] Section 82 (2) 18
Omit "on a review under section 82A". 19
Insert instead "following a review under Division 7A". 20
[22] Section 82 (3) 21
Insert "a review application made under Division 7A or" before "an appeal". 22
[23] Section 82 (4) 23
Omit the subsection. Insert instead: 24
(4) If a determination pursuant to subsection (2) is made by granting 25
consent, the consent authority is entitled, with the consent of the 26
applicant and without prejudice to costs, to have an application 27
for review or an appeal made before that consent in respect of a 28
failure to determine the matter withdrawn at any time prior to the 29
determination of that application or appeal. 30
[24] Section 82A Review of determination 31
Omit the section. 32
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[25] Section 83 Date from which consent operates 1
Omit "section 82A (7)" from section 83 (1) (a). 2
Insert instead "section 96J (3)". 3
[26] Section 83 (1) (b) 4
Insert "or development to which an objection has been made in accordance 5
with regulations under section 79AA" after "section 79 (5)". 6
[27] Section 83 (1) (b) (i) 7
Omit "an inquiry by a Commission of Inquiry". 8
Insert instead "a review by the Planning Assessment Commission". 9
[28] Section 83 (2) 10
Insert "a review application has been made under Division 7A or" before "an 11
appeal". 12
[29] Section 83 (2) (b) 13
Insert "review application or" before "appeal". 14
[30] Section 83 (3) 15
Omit the subsection. Insert instead: 16
(3) A consent referred to in subsection (1) or (2) is void and, except 17
for the purposes of Division 7A or section 97 or 98, is taken never 18
to have been granted, if: 19
(a) development consent is refused on a review application 20
under section 96C or 96D or an appeal under section 97, or 21
(b) the effect of a decision on a review application under 22
section 96E or an appeal under section 98 is that 23
development consent is refused. 24
[31] Section 83 (4) 25
Insert "or 96K" after "section 82". 26
[32] Section 83 (6) 27
Omit the subsection. 28
[33] Section 90 Application of this Division 29
Omit "to which Part 5A applies" from section 90 (2). 30
Insert instead "made by or on behalf of the Crown (within the meaning of 31
Division 4)". 32
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[34] Section 92A Effect of giving notice 1
Insert "or a regulation made under section 79AA" after "or 79A" in section 2
92A (a). 3
[35] Part 4, Division 8, heading 4
Omit "Appeals". Insert instead "Appeals to the Court". 5
[36] Section 104 Appeals and other provisions relating to development 6
consents after order of Court 7
Insert "Division 7A and" before "sections 97 and 98" wherever occurring. 8
[37] Section 104A Voluntary surrender of development consent 9
Insert "a review application under Division 7A or" before "an appeal" in 10
section 104A (2). 11
[38] Section 105 Regulations--Part 4 12
Omit section 105 (1) (p1). 13
[39] Part 4A, Division 1, heading 14
Insert after the heading to Part 4A: 15
Division 1 Certification of work and other matters 16
[40] Section 109J Restriction on issue of subdivision certificates 17
Insert "or person who has made a submission in accordance with the 18
regulations under section 79AA" after "objector" in section 109J (1) (g) where 19
firstly occurring. 20
[41] Section 109J (1) (g) (i) 21
Insert "or person" after "objector". 22
[42] Section 109J (1) (g) (ii) 23
Omit the subparagraph. Insert instead: 24
(ii) if a review application under section 96D, or an 25
appeal, has been made by the objector or person 26
within that time, the application or appeal has been 27
finally determined. 28
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[43] Section 109K Appeals against failure or refusal to issue Part 4A 1
certificates 2
Insert "or other development in respect of which a review application may be 3
made under section 96E" after "designated development" wherever occurring 4
in section 109K (3) (c) and (d). 5
[44] Section 109K (3) (d) (ii) 6
Insert "a review application may be made under section 96E or" before "an 7
appeal". 8
[45] Section 109K (3) (d) (iii) 9
Omit the subparagraph. Insert instead: 10
(iii) if such an application or appeal is made, within 14 11
days after the final determination of the application 12
or appeal, 13
[46] Part 4A, Division 2, heading 14
Insert before section 109R (as renumbered by Schedule 2.2 [58]): 15
Division 2 Crown building work and other Crown 16
development 17
[47] Section 112 Decision of determining authority in relation to certain 18
activities 19
Omit "directed that an inquiry be held in accordance with section 119" from 20
section 112 (1) (d). 21
Insert instead "requested that a review be held by the Planning Assessment 22
Commission". 23
[48] Section 112 (1) (d) 24
Omit "the inquiry". Insert instead "the review". 25
[49] Section 113 Publicity and examination of environmental impact 26
statements 27
Omit "directed that an inquiry be held in accordance with section 119" from 28
section 113 (5). 29
Insert instead "requested that a review be held by the Planning Assessment 30
Commission". 31
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[50] Section 114 Consideration of findings and recommendations of 1
Planning Assessment Commission 2
Omit "directed that an inquiry be held, in accordance with section 119". 3
Insert instead "requested that a review be held by the Planning Assessment 4
Commission". 5
[51] Section 115M Reviews about designated fishing activity 6
Omit "direct an inquiry under section 119" from section 115M (1). 7
Insert instead "request that a review be held by the Planning Assessment 8
Commission". 9
[52] Section 115M (2) 10
Omit "Commission of Inquiry that has conducted the inquiry". 11
Insert instead "Planning Assessment Commission". 12
[53] Section 115M (3) 13
Omit "an inquiry". Insert instead "a review". 14
[54] Section 115O Determination with respect to environmental assessment 15
Omit "a Commission of Inquiry" from section 115O (3) (c). 16
Insert instead "the Planning Assessment Commission". 17
[55] Part 5A, heading and sections 116A116F and 116H (or sections 18
115T115Y and 115ZB (as renumbered by Schedule 3.1 [5])) 19
Omit the heading and sections. 20
[56] Section 116G Building, demolition and incidental work (or section 115Z 21
(as renumbered by Schedule 3.1 [5])) 22
Insert in alphabetical order in section 116G (1): 23
Crown has the same meaning as it has in Division 4 of Part 4. 24
[57] Section 116GA Crown development for public entertainment (or section 25
115ZA (as renumbered by Schedule 3.1 [5])) 26
Insert in alphabetical order in section 116GA (1): 27
Crown has the same meaning as it has in Division 4 of Part 4. 28
[58] Sections 116G and 116GA (or sections 115Z and 115ZA (as renumbered 29
by Schedule 3.1 [5])) 30
Renumber as sections 109R and 109S, respectively. 31
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[59] Section 117C Definitions 1
Omit the definition of panel. Insert instead in alphabetical order: 2
regional panel means a joint regional planning panel. 3
[60] Section 118AA Planning assessment panels 4
Omit "panel" wherever occurring in section 118AA (2)(6) and (8)(11). 5
Insert instead "planning assessment panel". 6
[61] Section 118AA (7) and (7A) 7
Omit section 118AA (7). Insert instead: 8
(7) Part 2 of Schedule 5B has effect with respect to the members of 9
planning assessment panels. 10
(7A) The regulations may make provision for or with respect to the 11
procedures of planning assessment panels. 12
[62] Section 118AB Functions of planning administrators or panels 13
Omit "or panel" from section 118AB (1). 14
Insert instead ", planning assessment panel or regional panel". 15
[63] Section 118AB (2) 16
Omit "or panel". Insert instead "or planning assessment panel". 17
[64] Section 118AC Costs of planning administrator or planning assessment 18
panel 19
Omit "or panel" wherever occurring. 20
Insert instead "or planning assessment panel". 21
[65] Section 118AD Council to assist planning administrator or panel 22
Omit "or panel" wherever occurring in section 118AD (1). 23
Insert instead ", planning assessment panel or regional panel". 24
[66] Section 118AE Annual report on activities of planning administrators 25
and planning assessment panels 26
Omit "and panels" wherever occurring. 27
Insert instead "and planning assessment panels". 28
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[67] Section 118AF Regulations 1
Omit "or panel" wherever occurring. 2
Insert instead ", planning assessment panel or regional panel". 3
[68] Section 118AF (a) and (b) 4
Omit "or panel's" wherever occurring. 5
Insert instead ", planning assessment panel's or regional panel's". 6
[69] Part 6, Division 2, heading 7
Omit "Public inquiries and settlement". Insert instead "Settlement". 8
[70] Sections 119120A 9
Omit the sections. 10
[71] Section 121 Settlement of disputes 11
Omit "a Commissioner of Inquiry" from section 121 (3). 12
Insert instead "a member of the Planning Assessment Commission". 13
[72] Section 132 Constitution of development areas 14
Omit section 132 (7). Insert instead: 15
(7) If the Minister has requested that a review be held by the Planning 16
Assessment Commission with respect to the proposal, the 17
Minister must not determine the application until after: 18
(a) the review has been held, and 19
(b) the Minister has considered the findings and 20
recommendations of the Commission following the 21
review. 22
[73] Section 152 Right to be heard 23
Omit "Where". 24
Insert instead "Except as provided by this Act or the regulations, if". 25
[74] Schedule 5B Planning assessment panels 26
Omit Division 3 of Part 2. 27
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[75] Schedule 6 Savings, transitional and other provisions 1
Insert in appropriate order in Part 21 (as inserted by Schedule 5.1 [12]): 2
Division 3 Provisions relating to development 3
assessment 4
124 Commissioners of Inquiry 5
(1) A person who held office as a Commissioner of Inquiry 6
immediately before the repeal of Division 4 of Part 2 by the 7
amending Act ceases to hold office on that repeal. 8
(2) A Commissioner of Inquiry is not entitled to any remuneration or 9
compensation because of the loss of that office as a consequence 10
of the amendments made by the amending Act. 11
125 Committees 12
(1) A person who held office as a member of the Local Government 13
Liaison Committee, or a committee established under section 22, 14
immediately before the repeal of Division 5 of Part 2 by the 15
amending Act ceases to hold office on that repeal. 16
(2) Any such member is not entitled to any remuneration or 17
compensation because of the loss of that office as a consequence 18
of the amendments made by the amending Act. 19
126 Application to existing development applications and consents 20
(1) The amendment made to section 86A by the amending Act does 21
not apply to or in respect of a complying development certificate 22
issued before the commencement of the amendment. 23
(2) The amendments made to section 95 by the amending Act do not 24
apply to or in respect of a development consent granted before the 25
commencement of those amendments. 26
(3) The amendments made to section 95A by the amending Act 27
apply to or in respect of a development consent granted before the 28
commencement of those amendments. 29
2.3 Amendment of Heritage Act 1977 No 136 30
[1] Section 4 Definitions 31
Omit the definition of Commissioner of Inquiry from section 4 (1). 32
Insert instead in alphabetical order: 33
Planning Assessment Commission has the same meaning as it 34
has in the Environmental Planning and Assessment Act 1979. 35
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[2] Section 34 Action by Minister following recommendation for listing 1
Omit section 34 (1) (c). Insert instead: 2
(c) request the Planning Assessment Commission to review 3
the matter. 4
[3] Section 34 (2) 5
Omit "appoints a Commissioner of Inquiry". 6
Insert instead "requests a review by the Planning Assessment Commission". 7
[4] Section 34 (2) 8
Omit "Commissioner of Inquiry provides the Commissioner's report". 9
Insert instead "Commission provides its report". 10
[5] Section 57 Effect of interim heritage orders and listing on State Heritage 11
Register 12
Omit "for the purposes of section 116C of the Environmental Planning and 13
Assessment Act 1979 as referred to in section 116B (a) of that Act" from 14
section 57 (1A) (b). 15
Insert instead "for the purposes of Division 4 of Part 4 of the Environmental 16
Planning and Assessment Act 1979 as referred to in section 88 (2) (a) of that 17
Act". 18
[6] Section 71 Planning Assessment Commission reports 19
Omit "appoint a Commissioner of Inquiry". 20
Insert instead "request the Planning Assessment Commission". 21
[7] Sections 71 (a) and 78 (a) 22
Omit "the Commissioner" wherever occurring. 23
Insert instead "the Commission". 24
[8] Sections 72 and 79 25
Omit "the Commissioner of Inquiry" wherever occurring. 26
Insert instead "the Planning Assessment Commission". 27
[9] Sections 73 (1) (d) and 79A (1) (d) 28
Omit "Commissioner of Inquiry concerned" wherever occurring. 29
Insert instead "Planning Assessment Commission". 30
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[10] Section 78 Planning Assessment Commission reports 1
Omit "appoint a Commissioner of Inquiry". 2
Insert instead "request the Planning Assessment Commission". 3
2.4 Amendment of Independent Commission Against 4
Corruption Act 1988 No 35 5
Section 74C Reports relating to local government and planning 6
authorities 7
Insert after section 74C (3B): 8
(3C) The Commission is authorised to include in a report under section 9
74 a recommendation that consideration be given to the removal 10
from office under the Environmental Planning and Assessment 11
Act 1979 of a member of the Planning Assessment Commission 12
or of a joint regional planning panel or a planning arbitrator 13
because of corrupt conduct by the member or planning arbitrator. 14
2.5 Amendment of Ombudsman Act 1974 No 68 15
Section 5 Definitions 16
Insert "or planning arbitrator" after "certifier" in paragraph (f1) of the 17
definition of public authority in section 5 (1). 18
2.6 Amendment of Public Sector Employment and Management 19
Act 2002 No 43 20
Schedule 2 Executive positions (other than non-statutory SES positions) 21
Omit from Part 3: 22
Chairman of Commissioners of Inquiry (under the 23
Environmental Planning and Assessment Act 1979) 24
Deputy Chairman of Commissioners of Inquiry (under the 25
Environmental Planning and Assessment Act 1979) 26
Commissioner of Inquiry (under the Environmental Planning 27
and Assessment Act 1979) (2 positions) 28
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2.7 Amendment of Statutory and Other Offices Remuneration 1
Act 1975 (1976 No 4) 2
Schedule 2 Public offices 3
Omit from Part 1: 4
Chairperson of Commissioners of Inquiry (under the 5
Environmental Planning and Assessment Act 1979) 6
Deputy Chairperson of Commissioners of Inquiry (under the 7
Environmental Planning and Assessment Act 1979) 8
Commissioner of Inquiry (under the Environmental Planning 9
and Assessment Act 1979) 10
2.8 Amendment of Water Act 1912 No 44 11
[1] Section 11A Determination of applications affected by reviews by 12
Planning Assessment Commission 13
Omit "a Commission of Inquiry has given a section 120A notice" from section 14
11A (1). 15
Insert instead "the Planning Assessment Commission has given notice of a 16
review under the Environmental Planning and Assessment Act 1979". 17
[2] Section 11A (2) (a) 18
Omit "Commission of Inquiry". 19
Insert instead "Planning Assessment Commission". 20
[3] Section 11A (2) 21
Omit "section 120A". 22
[4] Section 11A (2) (b) and (3) 23
Omit "Commission of Inquiry's section 119 report" wherever occurring. 24
Insert instead "Commission's report under the Environmental Planning and 25
Assessment Act 1979". 26
[5] Section 11A (6) 27
Omit the subsection. 28
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[6] Section 171A Determination of applications affected by reviews by 1
Planning Assessment Commission 2
Omit "a Commission of Inquiry has given a section 120A notice" from section 3
171A (1). 4
Insert instead "the Planning Assessment Commission has given notice of a 5
review under the Environmental Planning and Assessment Act 1979". 6
[7] Section 171A (2) (a) 7
Omit "Commission of Inquiry". 8
Insert instead "Planning Assessment Commission". 9
[8] Section 171A (2) 10
Omit "section 120A". 11
[9] Section 171A (2) (b) and (3) 12
Omit "Commission of Inquiry's section 119 report" wherever occurring. 13
Insert instead "Commission's report under the Environmental Planning and 14
Assessment Act 1979". 15
[10] Section 171A (6) 16
Omit the subsection. 17
2.9 Amendment of Water Management Act 2000 No 92 18
[1] Section 94 Determination of applications affected by reviews by 19
Planning Assessment Commission 20
Omit "a Commission of Inquiry has given a section 120A notice" from section 21
94 (1). 22
Insert instead "the Planning Assessment Commission has given notice of a 23
review under the Environmental Planning and Assessment Act 1979". 24
[2] Section 94 (2) (a) 25
Omit "Commission of Inquiry". 26
Insert instead "Planning Assessment Commission". 27
[3] Section 94 (2) 28
Omit "section 120A". 29
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[4] Section 94 (2) (b) and (3) 1
Omit "Commission of Inquiry's section 119 report" wherever occurring. 2
Insert instead "Commission's report under the Environmental Planning and 3
Assessment Act 1979". 4
[5] Section 94 (4) 5
Omit the subsection. 6
2.10 Amendment of Environmental Planning and Assessment 7
Regulation 2000 8
[1] Clause 51 Rejection of development applications 9
Omit "7" from clause 51 (1). Insert instead "14". 10
[2] Part 6, Division 7, heading 11
Insert "and development (other than designated development) subject to 12
third party review applications" after "development". 13
[3] Clause 86 Application of Division 14
Omit clause 86 (1). Insert instead: 15
(1) This Division applies: 16
(a) to other advertised development, and 17
(b) to development in respect of a which a review application 18
may be made by a person (other than the applicant for a 19
development application) under section 96E of the Act 20
(reviewable development). 21
[4] Clause 87 How must a development application be publicly notified? 22
Omit "other advertised development". 23
Insert instead "development to which this Division applies". 24
[5] Clause 88 Who must written notice be given to? 25
Insert "(in the case of other advertised development)" after "application" in 26
clause 88 (1) where firstly occurring. 27
[6] Clause 88 (1A) 28
Insert after clause 88 (1): 29
(1A) Written notice of the development application (in the case of 30
reviewable development) must be given to such persons as 31
appear to the consent authority to own or occupy land within 1 32
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kilometre of any point on the boundary of the land the subject of 1
the development application. 2
[7] Clause 100 Notice of determination 3
Omit "section 82A" from clause 100 (1) (c1). 4
Insert instead "Division 7A of Part 4". 5
[8] Clause 100 (1) (k) 6
Insert "or a right to make a review application" after "appeal". 7
[9] Clause 113A Public participation: application under section 82A of the 8
Act for review of Council's determination 9
Omit the clause. 10
[10] Part 6, Division 14 11
Insert after Division 13: 12
Division 14 Review conditions 13
124A Application of Division 14
This Division applies to a further condition imposed under 15
section 80A (10B) of the Act in relation to a development consent 16
condition that permits extended hours of operation or increases 17
the maximum number of persons permitted in a building (in this 18
Division called a review condition). 19
124B Development for which review condition may be imposed 20
(1) Development consent for the following purposes may be the 21
subject of a review condition: 22
(a) entertainment facilities, 23
(b) function centres, 24
(c) nightclubs, 25
(d) pubs, 26
(e) registered clubs. 27
(2) Words and expressions used in this clause have the same 28
meaning as they have in the standard instrument set out in the 29
Standard Instrument (Local Environmental Plans) Order 2006. 30
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124C Matters to be included in consent 1
A consent that is subject to a review condition must include the 2
following: 3
(a) a statement that the consent is subject to the condition and 4
the purpose of the condition, 5
(b) that the consent authority is to carry out the reviews, 6
(c) when, or at what intervals, the reviews are to be carried 7
out. 8
124D Review procedures 9
(1) The consent authority must give the operator of a development 10
subject to a review condition not less than 14 days written notice 11
that a review is to be carried out under the condition. 12
(2) The consent authority may notify such other persons as it thinks 13
fit of the review. 14
(3) The consent authority must take into account any submissions 15
made by a person that are received within 14 days after notice is 16
given to the person of a review. 17
Note. Under section 80A (10D) of the Act, a decision to change a review 18
condition of a development consent is taken to be a determination of a 19
development consent and is subject to the notification and appeal 20
provisions under the Act in relation to such a determination. 21
[11] Clause 264 Council to maintain a register of development applications 22
and consents 23
Insert after clause 264 (2) (m): 24
(ma) in the case of a consent subject to a condition under section 25
80A (10B) of the Act, the outcome of any review carried 26
out under the condition, 27
[12] Part 16B 28
Insert after Part 16A: 29
Part 16B Planning bodies and planning arbitrators 30
268C Definition 31
In this Part: 32
planning body means the Planning Assessment Commission, a 33
joint regional planning panel or a planning assessment panel. 34
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268D General procedure 1
(1) The procedure for the calling of meetings of a planning body and 2
for the conduct of business at those meetings is, subject to the Act 3
and this Regulation and any directions by the Minister, to be as 4
determined by the planning body. 5
(2) Subject to this clause, the planning body is not bound by the rules 6
of evidence. 7
(3) Nothing in this Part derogates from any law relating to Crown 8
privilege. 9
268E Quorum 10
The quorum for a meeting of a planning body is a majority of its 11
members for the time being (including the chairperson). 12
268F Presiding member 13
(1) The chairperson (or, in the absence of the chairperson, a person 14
elected by the members) is to preside at a meeting of a planning 15
body. 16
(2) The presiding member has a deliberative vote and, in the event of 17
an equality of votes, has a second or casting vote. 18
268G Voting 19
A decision supported by a majority of the votes cast at a meeting 20
of a planning body at which a quorum is present is the decision 21
of the planning body. 22
268H Public meetings 23
A planning body may (unless the Minister otherwise directs) 24
conduct its meetings in public, and is required to do so for the 25
conduct of any business that is required to be conducted in public 26
by a direction of the Minister. 27
268I Transaction of business outside meetings or by telephone 28
(1) A planning body may, if it thinks fit, transact any of its business 29
by the circulation of papers among all the members of the 30
planning body for the matter for the time being, and a resolution 31
in writing approved in writing by a majority of those members is 32
taken to be a decision of the planning body. 33
(2) The planning body may, if it thinks fit, transact any of its business 34
at a meeting at which members (or some members) participate by 35
telephone, closed-circuit television or other means, but only if 36
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any member who speaks on a matter before the meeting can be 1
heard by the other members. 2
(3) For the purposes of: 3
(a) the approval of a resolution under subclause (1), or 4
(b) a meeting held in accordance with subclause (2), 5
the chairperson and each member of the planning body have the 6
same voting rights as they have at an ordinary meeting of the 7
planning body. 8
(4) A resolution approved under subclause (1) is, subject to the 9
regulations, to be recorded in the minutes of the meetings of the 10
planning body. 11
(5) Papers may be circulated among the members for the purposes of 12
subclause (1) by facsimile or other transmission of the 13
information in the papers concerned. 14
268J First meeting 15
The Minister may call the first meeting of the planning body in 16
such manner as the Minister thinks fit. 17
268K Planning arbitrators 18
(1) A planning arbitrator is to remain on the register of planning 19
arbitrators for a period not exceeding 3 years, but is eligible to be 20
relisted on that register. 21
(2) The Minister may remove a planning arbitrator from the register 22
of planning arbitrators if the Independent Commission Against 23
Corruption, in a report referred to in section 74C of the 24
Independent Commission Against Corruption Act 1988, 25
recommends that consideration be given to the removal of the 26
planning arbitrator from office because of corrupt conduct by the 27
planning arbitrator. 28
(3) A planning arbitrator may be removed from the register of 29
planning arbitrators by the Minister at any time without notice 30
and for no reason. 31
(4) A planning arbitrator is not entitled to any remuneration or 32
compensation because of removal from office under this clause. 33
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[13] Clause 285 1
Insert after clause 284: 2
285 Categories of development for which review applications may be 3
made by objectors 4
The classes of development applications in respect of which a 5
review application may be made under section 96E of the Act are 6
as follows: 7
(a) development applications relating to development for 8
residential purposes that: 9
(i) exceeds 2 storeys, or 10
(ii) contains at least 5 separate dwellings and has a site 11
area of more than 2,000m2, 12
and exceeds an applicable development standard for height 13
or floor space ratio by more than 25%, 14
(b) development applications relating to development for 15
commercial, retail or mixed use purposes that: 16
(i) is greater than 9m in height, and 17
(ii) has a site area of more than 2,000m2, and 18
(iii) exceeds an applicable development standard for 19
height or floor space ratio by more than 25%. 20
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Schedule 3 Amendments relating to development 1
contributions 2
(Section 3) 3
3.1 Amendment of Environmental Planning and Assessment 4
Act 1979 5
[1] Section 75O Giving of approval for concept plan 6
Omit "planning agreement referred to in section 93F" from section 75O (5). 7
Insert instead "planning agreement under Division 4 of Part 5B". 8
[2] Section 75R Application of other provisions of Act 9
Omit section 75R (4). 10
[3] Section 75R 11
Insert at the end of the section: 12
Note. Section 116B provides for the application of Part 5B (Provision of 13
public infrastructure) to projects and the giving of approval for the 14
carrying out of projects under this Part. 15
[4] Part 4, Divisions 6 and 6A 16
Omit the Divisions. 17
[5] Part 5A Development by the Crown 18
Renumber the sections of Part 5A with sections numbered consecutively 19
starting from section 115T and with cross-references in the Act to sections of 20
that Part renumbered accordingly. 21
[6] Part 5B 22
Insert after Part 5A: 23
Part 5B Provision of public infrastructure 24
Division 1 Preliminary 25
116A Definitions 26
(1) In this Part: 27
community infrastructure--see section 116C. 28
community infrastructure contribution means a development 29
contribution required by a consent authority under Division 2. 30
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contributions plan means a contributions plan approved under 1
this Part. 2
development contribution means: 3
(a) the dedication of land free of cost, or 4
(b) the payment of a monetary contribution. 5
Note. Development contributions for community infrastructure are 6
provided for in Division 2 and development contributions for public 7
infrastructure are provided for in Division 3. 8
development corporation means a development corporation 9
constituted under Part 2 of the Growth Centres (Development 10
Corporations) Act 1974. 11
growth centre has the same meaning as it has in the Growth 12
Centres (Development Corporations) Act 1974. 13
planning agreement means a voluntary planning agreement 14
provided for in Division 4. 15
planning authority means: 16
(a) a council, or 17
(b) the Minister, or 18
(c) the corporation, or 19
(d) a development corporation, or 20
(e) a public authority declared by the regulations to be a 21
planning authority for the purposes of this Part. 22
public infrastructure--see section 116C. 23
State contributions area means land for the time being described 24
in Schedule 5A. 25
State infrastructure contribution means a State infrastructure 26
contribution determined by the Minister under Division 3. 27
(2) Words and expressions used in Schedule 1 have the same 28
meanings as they have in this Part. 29
116B Application of Part 30
(1) This Part applies to development that requires development 31
consent. 32
(2) This Part applies to projects under Part 3A (and the giving of 33
approval for the carrying out of projects under that Part) in the 34
same way as it applies to development and the granting of 35
consent to the carrying out of development under Part 4, subject 36
to any necessary modifications and any modifications prescribed 37
by the regulations. However, a condition cannot be imposed 38
under a provision of Division 2, 3 or 5 of this Part unless the 39
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provision would have applied if Part 3A did not apply to the 1
project and a development consent were granted. 2
116C Community and public infrastructure 3
(1) In this Part: 4
community infrastructure means public amenities and public 5
services, but does not include water supply or sewerage services. 6
public infrastructure includes: 7
(a) public amenities and public services, and 8
(b) affordable housing, and 9
(c) transport infrastructure, 10
but does not include water supply or sewerage services. 11
(2) In this Part, provision of public infrastructure includes: 12
(a) the provision, extension and augmentation of (or the 13
recoupment of the cost of providing, extending or 14
augmenting) public infrastructure, and 15
(b) the funding of recurrent expenditure relating to the 16
provision, extension and augmentation of public 17
infrastructure, and 18
(c) the conservation or enhancement of the natural 19
environment, and 20
(d) any action of a planning authority in connection with the 21
exercise of any statutory function under this Act, including 22
the carrying out of any research or investigation and the 23
preparation of any report, study or instrument. 24
116D Key considerations for development contributions 25
The following are the key considerations for development 26
contributions for the purposes of this Part: 27
(a) Can the public infrastructure that is proposed to be funded 28
by a development contribution be provided within a 29
reasonable time? 30
(b) What will be the impact of the proposed development 31
contribution on the affordability of the proposed 32
development? 33
(c) Is the proposed development contribution based on a 34
reasonable apportionment between existing demand and 35
new demand for public infrastructure to be created by the 36
proposed development to which the contribution relates? 37
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Schedule 3 Amendments relating to development contributions
(d) Is the proposed development contribution based on a 1
reasonable estimate of the cost of proposed public 2
infrastructure? 3
(e) Are the estimates of demand for each item of public 4
infrastructure to which the proposed development 5
contribution relates reasonable? 6
116E Accountability 7
(1) The regulations may make provision for or with respect to 8
requiring the collection and publication by planning authorities 9
of information concerning the provision of public infrastructure 10
and the determination, collection, application and use of 11
development contributions under this Part. 12
(2) The information required to be collected and published can 13
include (but is not limited to): 14
(a) details of the amounts of monetary contributions paid and 15
the purposes for which they were paid, and 16
(b) details of the purposes for which monetary contributions 17
have been applied by a planning authority, and 18
(c) details of the time frame for the provision of public 19
infrastructure to which any contributions plan approved by 20
the planning authority relates, and 21
(d) details of any borrowings or other arrangements made by 22
a planning authority for the provision of public 23
infrastructure, and 24
(e) the amount and other details of any monetary contributions 25
that have not been applied for the purpose for which they 26
were paid and that continue to be held by a planning 27
authority. 28
(3) The regulations can, for example, require the publication of 29
information by a planning authority by requiring inclusion of the 30
information in any annual or other report of the planning 31
authority. 32
116F Use of development contributions 33
(1) A consent authority or planning authority is to hold any monetary 34
contribution paid under this Part (including under a planning 35
agreement) for the purpose for which the payment was required, 36
and apply the money towards that purpose within a reasonable 37
time. 38
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(2) Money paid under this Part for different purposes may be pooled 1
and applied progressively for those purposes, subject to the 2
requirements of any relevant contributions plan. 3
(3) Money paid as an indirect contribution under Division 2 is to be 4
applied (subject to any relevant provisions of a contributions 5
plan) towards the provision, extension or augmentation of 6
community infrastructure or towards recouping the cost of the 7
provision, extension or augmentation of community 8
infrastructure. 9
(4) Land dedicated under this Part is to be made available by the 10
consent authority or planning authority for the purpose for which 11
the dedication was required and within a reasonable time. 12
(5) A reference in this section to a monetary contribution includes a 13
reference to any additional amount earned from its investment. 14
(6) This section is subject to any direction of the Minister under this 15
Part. 16
(7) This section does not apply in respect of any of the following: 17
(a) monetary contributions paid, and the proceeds of the sale 18
of land dedicated, under Division 2 (Community 19
infrastructure contributions) in respect of development 20
within a growth centre that is specified in Schedule 3 21
(Community Infrastructure Trust Fund areas) to the 22
Growth Centres (Development Corporations) Act 1974, 23
Note. Section 25 of the Growth Centres (Development 24
Corporations) Act 1974 requires these contributions to be paid 25
into a Community Infrastructure Trust Fund. 26
(b) a State infrastructure contribution under Division 3, 27
(c) a development contribution under Division 5 28
(Development contributions for affordable housing). 29
Division 2 Community infrastructure contributions 30
116G Direct and indirect contributions for community infrastructure 31
(1) A consent authority can require the following development 32
contributions in respect of development: 33
direct contributions, being either or both of the following: 34
(a) a reasonable development contribution for the provision, 35
extension or augmentation of community infrastructure 36
within the area, 37
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(b) a reasonable monetary contribution towards recoupment 1
of the cost of providing existing community infrastructure 2
within the area. 3
indirect contributions, being the payment of a monetary 4
contribution that is a percentage of the proposed cost of carrying 5
out the development. 6
(2) An indirect contribution cannot be required in relation to 7
development if a direct contribution is required in relation to that 8
development. 9
(3) Once a direct contribution has been required in respect of 10
development comprising the subdivision of land (the initial 11
development), no direct or indirect contribution can be required 12
in respect of other development on that land except to the extent 13
(if any) that the other development will or is likely to increase the 14
demand for community infrastructure beyond the increase in 15
demand attributable to the initial development. 16
116H Councils require contributions plan 17
(1) A council cannot require a community infrastructure contribution 18
unless it is of a kind allowed by, and is determined in accordance 19
with, a contributions plan approved by the council. 20
(2) The Minister may, by direction in writing given in a particular 21
case, authorise a council to require a community infrastructure 22
contribution even though it is not of a kind allowed by, or is not 23
determined in accordance with, a contributions plan approved by 24
the council. 25
(3) A council and the Minister must have regard to the key 26
considerations for development contributions established by 27
section 116D when approving a contributions plan or giving a 28
direction under this section. 29
116I Councils limited to contributions for key community infrastructure 30
(1) A council's contributions plan cannot allow the council to require 31
a community infrastructure contribution unless the community 32
infrastructure is: 33
(a) key community infrastructure (being community 34
infrastructure prescribed by the regulations as key 35
community infrastructure), or 36
(b) additional community infrastructure (being community 37
infrastructure other than key community infrastructure) 38
that the Minister has approved for the council under this 39
section. 40
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(2) The Minister may on application by a council approve particular 1
community infrastructure or a kind of community infrastructure 2
as additional community infrastructure for the council. 3
(3) The Minister may by direction in writing to one or more councils 4
direct that (despite any other provision of this section or the 5
regulations) a contributions plan of the council may permit the 6
council to require a community infrastructure contribution for 7
specified additional community infrastructure. 8
(4) In determining whether to grant approval or give a direction 9
under this section, the Minister must have regard to the key 10
considerations for development contributions established by 11
section 116D. 12
(5) The regulations may: 13
(a) limit the kinds of infrastructure that may be the subject of 14
an approval or direction of the Minister of additional 15
community infrastructure for the purposes of this section, 16
and 17
(b) require a council that applies for the approval of the 18
Minister under this section to provide specified 19
information and documents (such as a business plan and 20
independent assessment of the business plan) in support of 21
or otherwise in connection with the application. 22
116J Nexus for direct contributions 23
(1) A direct contribution for the provision, extension or 24
augmentation of community infrastructure within an area can 25
only be required if the consent authority is satisfied that the 26
development concerned will or is likely to require the provision 27
of or increase the demand for that community infrastructure. 28
(2) A direct contribution towards recoupment of the cost of 29
providing existing community infrastructure within the area can 30
only be required if: 31
(a) the consent authority is satisfied that the development 32
concerned will, if carried out, benefit from the provision of 33
the existing public infrastructure, and 34
(b) the existing public infrastructure was (at any time, whether 35
before or after the date of commencement of this Part) 36
provided within the area by a consent authority in 37
preparation for or to facilitate the carrying out of 38
development in the area. 39
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(3) For the purposes of a direct contribution, the cost of providing 1
existing community infrastructure is that cost as indexed in 2
accordance with the regulations. 3
(4) A direct contribution cannot be required if the community 4
infrastructure concerned is, in whole or in part, infrastructure 5
provided, or to be provided, in relation to the development out of 6
State infrastructure contributions. 7
116K Nexus for indirect contributions 8
(1) The validity of an indirect contribution is not affected by there 9
being no connection between the development the subject of the 10
indirect contribution and the object of expenditure of any money 11
required to be paid. 12
(2) A consent authority cannot require payment of an indirect 13
contribution in relation to development on land in a State 14
contributions area except with the approval of the Minister or a 15
development corporation designated by the Minister to give 16
approvals under this subsection. 17
(3) The regulations may make provision for or with respect to 18
indirect contributions, including: 19
(a) the means by which the proposed cost of carrying out 20
development is to be estimated or determined, and 21
(b) the maximum percentage of an indirect contribution. 22
(4) The Minister may by direction to a consent authority in the case 23
of a particular development application permit the consent 24
authority to require payment of an indirect contribution of a 25
percentage in excess of any maximum percentage fixed by the 26
regulations. The Minister's direction may also include 27
requirements for the public notification of any such permission, 28
including notification in any contributions plan of the consent 29
authority. 30
116L Minister's directions about community infrastructure 31
contributions 32
(1) The Minister may, generally or in any particular case or class of 33
cases, direct a consent authority as to any one or more of the 34
following: 35
(a) the community infrastructure in relation to which a 36
requirement for a community infrastructure contribution 37
may or may not be imposed, 38
(b) in the case of a requirement for a direct contribution 39
requiring the payment of a monetary contribution--the 40
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means by which or the factors in relation to which the 1
amount of the contribution may or may not be calculated 2
or determined, and the maximum amount of any such 3
contribution, 4
(c) in the case of a requirement for an indirect contribution-- 5
the maximum percentage or maximum amount of the 6
indirect contribution, 7
(d) the things that may or may not be accepted as a material 8
public benefit for the purposes of a requirement for a direct 9
contribution, 10
(e) the type or area of development in respect of which a 11
community infrastructure contribution may or may not be 12
imposed, 13
(f) the time within which community infrastructure 14
contributions in the form of monetary contributions under 15
this Division are to be applied (including a direction as to 16
what constitutes a reasonable time for the provision of 17
community infrastructure funded by community 18
infrastructure contributions under this Division), 19
(g) the use of community infrastructure contributions in the 20
form of monetary contributions for purposes other than 21
those for which they were paid, 22
(h) the preparation of joint contributions plans by 2 or more 23
councils. 24
(2) A consent authority to which a direction is given under this 25
section must comply with the direction in accordance with its 26
terms. 27
(3) A consent authority must not, in granting development consent in 28
relation to which a direction under this section applies, impose a 29
condition that is not in accordance with the terms of the direction, 30
despite the other provisions of this Part and despite the provisions 31
of any contributions plan. 32
(4) A direction under this section as to the maximum amount or 33
maximum percentage of a community infrastructure contribution 34
may provide for the Minister to approve of an increase in that 35
maximum amount or percentage in a particular case on the 36
application of a council. 37
(5) The regulations may require a council that applies for the 38
approval of the Minister as referred to in subsection (4) to provide 39
specified information and documents (such as a business plan and 40
independent assessment of the business plan) in support of or 41
otherwise in connection with the application 42
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(6) Directions in force under this section are to be made publicly 1
available on the website of the Department. 2
116M Development contribution provisions in planning instruments 3
(1) An environmental planning instrument (EPI) must not include 4
provision that requires as a condition of development consent or 5
as a precondition to the grant of development consent: 6
(a) the making of a development contribution for the provision 7
of public infrastructure of any kind in connection with the 8
carrying out of the development concerned, or 9
(b) the making of satisfactory arrangements for the making of 10
such a development contribution. 11
(2) This section does not apply to any provision of an EPI authorised 12
by Division 3. 13
(3) This section does not prevent an EPI from including a provision 14
to the effect that development consent must not be granted for 15
development unless the consent authority is satisfied that 16
specified public infrastructure is available or that adequate 17
arrangements have been made to make that public infrastructure 18
available. 19
(4) This section does not apply to any provision that is in force 20
immediately before the commencement of this section. 21
116N Procedural matters 22
Part 1 of Schedule 1 has effect in relation to community 23
infrastructure contributions. 24
Division 3 State infrastructure contributions 25
116O State infrastructure contributions in State contributions areas 26
(1) For any land in a State contributions area, the Minister may 27
determine that development contributions (State infrastructure 28
contributions) are to be made for the provision of public 29
infrastructure in relation to development or a class of 30
development on the land. 31
(2) The Minister is to determine the level and nature of State 32
infrastructure contributions. A State infrastructure contribution 33
may be determined as a contribution of a specified amount or of 34
a percentage of the proposed cost of carrying out development or 35
any class of development. 36
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(3) In determining the level and nature of a State infrastructure 1
contribution, the Minister must have regard to the key 2
considerations for development contributions established by 3
section 116D. 4
(4) A State infrastructure contribution can extend to the provision of 5
public infrastructure outside a State contributions area or outside 6
New South Wales. 7
116P Restrictions on State infrastructure determinations 8
(1) The determination by the Minister of a state infrastructure 9
contribution is subject to the concurrence of: 10
(a) the Treasurer, or 11
(b) the Secretary of the Treasury (if the cost of the 12
infrastructure is less than $30 million). 13
(2) The determination by the Minister of a State infrastructure 14
contribution as a specified amount (but not as a percentage of the 15
proposed cost of carrying out development) is subject to the 16
following requirements: 17
(a) the contribution must as far as reasonably practicable be 18
reasonable having regard to the cost of the provision of 19
public infrastructure in relation to the development or class 20
of development concerned, 21
(b) a State infrastructure contribution for the provision of 22
public infrastructure outside the State contributions area 23
concerned is not to be determined unless the Minister is of 24
the opinion that the need for that public infrastructure 25
arises as a result of the development concerned. 26
116Q State infrastructure contributions in addition to community 27
infrastructure contributions 28
A requirement for a State infrastructure contribution is in 29
addition to any requirement for a community infrastructure 30
contribution under Division 2. 31
116R Provision in EPIs for satisfactory arrangements for State 32
infrastructure 33
(1) An environmental planning instrument can include provision to 34
the effect that development consent is not to be granted for 35
specified development or development of a specified class unless 36
arrangements satisfactory to the Director-General have been 37
made for the making of a development contribution for the 38
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provision of public infrastructure by the State in relation to the 1
development. 2
(2) In deciding for the purposes of any such provision whether 3
satisfactory arrangements have been made for the making of a 4
development contribution for the provision of public 5
infrastructure by the State in relation to development, the 6
Director-General must have regard to the key considerations for 7
development contributions established by section 116D. 8
(3) If a State infrastructure contribution is required in respect of 9
development, a development contribution for the provision of 10
public infrastructure in respect of the development cannot be 11
required under a provision of an environmental planning 12
instrument. 13
116S Procedural matters 14
Part 2 of Schedule 1 has effect in relation to State infrastructure 15
contributions. 16
Division 4 Voluntary planning agreements 17
116T Developers can enter into planning agreements 18
(1) A planning agreement is a voluntary agreement between one or 19
more planning authorities and a person (the developer) under 20
which the developer is required to dedicate land free of cost, pay 21
a monetary contribution, or provide any other material public 22
benefit, or any combination of them, to be used for or applied 23
towards the provision of public infrastructure or another public 24
purpose. 25
(2) The developer must be: 26
(a) a person who has sought a change to or the making or 27
revocation of an environmental planning instrument, or 28
(b) a person who has made, or proposes to make, a 29
development application, or 30
(c) a person who has entered into an agreement with, or is 31
otherwise associated with, a person to whom paragraph (a) 32
or (b) applies. 33
116U Planning authority must have regard to key considerations for 34
development contributions 35
When entering into a planning agreement a planning authority 36
must have regard to the key considerations for development 37
contributions established by section 116D. 38
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116V Council planning agreements limited to key community 1
infrastructure 2
(1) A planning agreement entered into by a council cannot apply in 3
respect of the provision of public infrastructure unless: 4
(a) the infrastructure is key community infrastructure (being 5
community infrastructure prescribed by the regulations as 6
key community infrastructure), or 7
(b) the provision of the public infrastructure concerned has 8
been approved for the council by the Minister under this 9
section. 10
(2) The Minister may on application by a council approve the 11
provision of public infrastructure specified by the Minister or of 12
a kind specified by the Minister for the purposes of a planning 13
agreement. 14
(3) The Minister may by direction in writing to a council direct that 15
(despite any other provision of this section or the regulations) a 16
planning agreement entered into by the council can apply in 17
respect of the provision of public infrastructure specified by the 18
Minister. 19
(4) In determining whether to grant approval or give a direction 20
under this section, the Minister must have regard to the key 21
considerations for development contributions established by 22
section 116D. 23
(5) The regulations may: 24
(a) limit the kinds of infrastructure that may be the subject of 25
an approval or direction of the Minister or the purposes of 26
this section, or 27
(b) require a council that applies for the approval of the 28
Minister under this section to provide specified 29
information and documents (such as a business plan and 30
independent assessment of the business plan) in support of 31
or otherwise in connection with such an application. 32
116W Planning agreements can limit other development contribution 33
requirements 34
(1) A planning agreement can exclude the application in respect of 35
development of any provision of Division 2 (Community 36
infrastructure contributions) or of Division 3 (State infrastructure 37
contributions), subject to the following restrictions: 38
(a) a planning agreement cannot exclude the application of a 39
provision of Division 2 in respect of development unless 40
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the consent authority for the development or the Minister 1
is a party to the agreement, 2
(b) a planning authority is not to enter into a planning 3
agreement excluding the application of Division 3 unless 4
the planning authority is the Minister or does so with the 5
approval of the Minister or a development corporation 6
designated by the Minister to give such approvals. 7
(2) If a planning agreement excludes the application of any provision 8
of Division 2 or 3 to particular development, a consent authority 9
cannot require a development contribution in respect of that 10
development under the excluded provisions (except in respect of 11
the application of any part of those provisions that is not excluded 12
by the agreement). 13
(3) A planning agreement can exclude benefits under a planning 14
agreement from being taken into consideration in connection 15
with requiring a direct contribution under Division 2, and such an 16
exclusion has effect accordingly. 17
116X Procedural matters 18
Part 3 of Schedule 1 has effect in relation to planning agreements. 19
Division 5 Development contributions for affordable 20
housing 21
116Y Conditions requiring land or contributions for affordable housing 22
(1) A State environmental planning policy may identify that there is 23
a need for affordable housing within an area. 24
(2) A consent authority may grant development consent for 25
development within such an area subject to a condition requiring 26
a reasonable development contribution to be used for the purpose 27
of providing affordable housing, but only if: 28
(a) the consent authority is satisfied that the proposed 29
development will or is likely to reduce the availability of 30
affordable housing within the area, or 31
(b) the consent authority is satisfied that the proposed 32
development will create a need for affordable housing 33
within the area, or 34
(c) the proposed development is allowed only because of the 35
initial zoning of a site, or the rezoning of a site, or 36
(d) the regulations provide for this section to apply to the 37
application for development consent. 38
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(3) The reasonableness of a development contribution is to be 1
determined having regard to the following: 2
(a) the extent of the need in the area for affordable housing, 3
(b) the scale of the proposed development, 4
(c) any other dedication or contribution required to be made 5
by the applicant under this Division, or under Division 2 as 6
a direct contribution. 7
(4) A condition may be imposed under this section only if: 8
(a) the condition complies with all relevant requirements 9
made by a State environmental planning policy with 10
respect to the imposition of conditions under this section, 11
and 12
(b) the condition is authorised to be imposed by a local 13
environmental plan or State environmental planning 14
policy, and is in accordance with a scheme for dedications 15
or contributions set out in or adopted by the plan or policy. 16
(5) A condition is not to be imposed under this section in relation to 17
development that is within a State contributions area. 18
116Z Other contributions to be taken into account 19
A consent authority that proposes to impose a condition in 20
accordance with this Division must take into consideration any 21
land or other sum of money that the applicant has previously 22
dedicated free of cost, or previously paid, for the purpose of 23
affordable housing within the area otherwise than as a condition 24
of a consent. 25
116ZA Other conditions concerning affordable housing 26
This Division does not prevent the imposition on a development 27
consent of other conditions relating to the provision, maintenance 28
or retention of affordable housing. Such conditions may require, 29
but are not restricted to, the imposition of covenants (including 30
positive covenants) or the entering into of contractual or other 31
arrangements. 32
116ZB Use of affordable housing contributions 33
(1) A development contribution made in accordance with a condition 34
imposed under this Division must: 35
(a) in the case of land, be made available by the consent 36
authority for the purposes of affordable housing within a 37
reasonable time, or 38
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(b) in the case of a monetary contribution, be held by the 1
consent authority (together with any additional amount 2
earned from its investment) for the purpose for which the 3
payment was required and applied by the consent authority 4
for the purposes of affordable housing in the area or an 5
adjoining area within a reasonable time, or 6
(c) in either case, transfer the land or pay the monetary 7
contribution in accordance with any applicable direction of 8
the Minister under this section. 9
(2) The Minister may give a direction, that applies generally or in 10
any particular case or class of cases, to a consent authority: 11
(a) requiring it to transfer to a person nominated by the 12
Minister land contributed under this Division, or 13
(b) requiring it to pay to a person nominated by the Minister a 14
monetary contribution contributed under this Division. 15
(3) A person nominated under this section by the Minister must: 16
(a) make available any land transferred to the person under 17
this Division for the purposes of affordable housing within 18
a reasonable time or (if the Minister so directs) within a 19
time directed by the Minister, and 20
(b) apply any monetary contribution paid to the person under 21
this Division (and any additional amount earned from its 22
investment) for the purposes of affordable housing in the 23
area concerned or in any other area directed by the 24
Minister, within a time directed by the Minister. 25
Division 6 State Infrastructure Fund 26
116ZC Definition 27
In this Part: 28
the Fund means the State Infrastructure Fund established under 29
this Division. 30
116ZD Establishment of Fund 31
(1) There is to be established in the Special Deposits Account a fund 32
called the State Infrastructure Fund. 33
(2) The Fund is to be administered by the Secretary of the Treasury. 34
The Secretary is to consult the Director-General in relation to the 35
administration of the Fund. 36
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116ZE Payments into Fund 1
The following is to be paid into the Fund: 2
(a) monetary contributions, and the proceeds of sale of any 3
land, received by a consent authority as a State 4
infrastructure contribution under Division 3, 5
(b) any money appropriated by Parliament for the purposes of 6
the Fund, 7
(c) the proceeds of the investment of money in the Fund, 8
(d) any other money required to be paid into the Fund by or 9
under this or any other Act or the regulations under this 10
Act. 11
116ZF Payments out of Fund 12
(1) The following is to be paid from the Fund: 13
(a) payments to public authorities for the provision of public 14
infrastructure in relation to development, 15
(b) any money required to meet administrative expenses in 16
relation to the Fund, 17
(c) all other money directed or authorised to be paid from the 18
Fund by this Act or by the regulations under this Act. 19
(2) The assets of the Fund can only be applied for the purposes 20
referred to in subsection (1). 21
116ZG Investment of money in Fund 22
The money in the Fund may be invested: 23
(a) in such manner as may be authorised by the Public 24
Authorities (Financial Arrangements) Act 1987, or 25
(b) if that Act does not confer power on the Department to 26
invest the money, in any other manner approved by the 27
Treasurer. 28
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[7] Schedule 1 1
Insert as Schedule 1: 2
Schedule 1 Provisions relating to development 3
contributions 4
(Sections 116N, 116S and 116X) 5
Part 1 Community infrastructure contributions 6
1 Development contributions to be imposed by condition of consent 7
A requirement for a community infrastructure contribution is to 8
be imposed by means of a condition on development consent for 9
the development concerned. 10
2 Appeals 11
(1) A condition of development consent that imposes a direct 12
contribution may be disallowed or amended by the Court on 13
appeal, or by a reviewing body on a review under section 96E, 14
because it is unreasonable in the particular circumstances of that 15
case, even if it was determined in accordance with a contributions 16
plan or direction of the Minister. The Court is not authorised to 17
disallow or amend the contributions plan or direction. 18
(2) A condition of development consent that imposes an indirect 19
contribution that is of a kind allowed by, and determined in 20
accordance with, a contributions plan (or a direction of the 21
Minister under this Part) may not be disallowed or amended by 22
the Court on appeal, or by a reviewing body on a review under 23
section 96E. 24
(3) A person cannot appeal to the Court under this Act (despite 25
section 123 or any other provision of this Act) in respect of: 26
(a) the approving, amending or repealing of a contributions 27
plan by the Minister under clause 7 (Minister's directions 28
about contributions plans), or 29
(b) the reasonableness in the particular circumstances of a 30
requirement for a community infrastructure contribution 31
that is determined in accordance with any such 32
contributions plan. 33
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3 Dedication of land or provision of material public benefit in 1
satisfaction of development contribution requirement 2
A consent authority may accept the dedication of land or the 3
provision of a material public benefit in part or full satisfaction of 4
a requirement for a community infrastructure contribution other 5
than an indirect contribution. 6
4 Other contributions to be taken into account 7
A consent authority that proposes to require a community 8
infrastructure contribution in respect of development must take 9
into consideration any land, money or other material public 10
benefit that the applicant has elsewhere dedicated or provided 11
free of cost within the area (or any adjoining area) or previously 12
paid to the consent authority, other than: 13
(a) a benefit provided as a condition of the grant of 14
development consent under this Act, or 15
(b) a benefit excluded from consideration by a planning 16
agreement. 17
5 Contribution requirements under other Acts 18
(1) Compliance with a requirement for a community infrastructure 19
contribution in relation to development operates to satisfy a 20
requirement imposed by a public authority under any other Act 21
(in relation to or in connection with that development) for the 22
dedication of land or payment of money in respect of the 23
provision of public infrastructure, to the extent of the value of the 24
land dedicated or the amount of money paid in compliance with 25
the requirement. 26
(2) The regulations may make provision for the determination in 27
accordance with the regulations of the value for the purposes of 28
this clause of the land dedicated in compliance with the 29
requirement. 30
6 Making of contributions plans 31
(1) A council, or 2 or more councils, may, subject to and in 32
accordance with the regulations, prepare and approve a 33
contributions plan for the purpose of imposing requirements for 34
community infrastructure contributions. 35
(2) If a contributions plan authorises the imposition of a requirement 36
for an indirect contribution, the plan is to specify the type or area 37
of development in respect of which an indirect contribution may 38
be imposed and is to preclude the imposition of a requirement for 39
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a direct contribution in respect of that type or area of 1
development. 2
(3) The regulations may make provision for or with respect to the 3
preparation and approval of contributions plans, including the 4
format, structure and subject-matter of plans. 5
(4) A council must, within 14 days after approving a contributions 6
plan, provide the Minister with a copy of the plan. 7
7 Minister's directions about contributions plans 8
(1) The Minister may direct a council to provide the Minister with a 9
draft of a contributions plan for review by the Minister before the 10
council approves the plan. The council is not to approve the 11
contributions plan until the Minister has notified the council that 12
the Minister's review of the plan has been completed. 13
(2) The Minister may, by direction in writing to a council, approve, 14
amend or repeal a contributions plan on behalf of the council. 15
(3) Alternatively, the Minister may direct a council in writing to 16
approve, amend or repeal a contributions plan in the time and 17
manner specified in the direction. The Minister may then, by 18
direction in writing to the council, approve, amend or repeal the 19
contributions plan on behalf of the council if the council fails to 20
do so in accordance with the direction. 21
(4) The approval, amendment or repeal of a contributions plan by the 22
Minister has effect as if done by the council. 23
(5) In approving, amending or repealing a contributions plan under 24
this clause the Minister is not subject to the regulations. 25
8 Operation of contributions plan if consent authority not a council 26
(1) A consent authority that is not a council can require a 27
development contribution even if it is not of a kind allowed by, 28
or is not determined in accordance with, a contributions plan. 29
(2) If there is a contributions plan that applies to the whole or any 30
part of the area in which development is to be carried out, a 31
consent authority that is not a council must however have regard 32
to the contributions plan before imposing the requirement. 33
9 Judicial notice, validity etc 34
(1) Judicial notice is to be taken of a contributions plan and of the 35
date on which the plan came into effect. 36
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(2) It is to be presumed, in the absence of evidence to the contrary, 1
that all conditions and preliminary steps precedent to the making 2
of a contributions plan have been complied with and performed. 3
(3) The validity of any procedure required to be followed in making 4
or approving a contributions plan is not to be questioned in any 5
legal proceedings except those commenced in the Court by any 6
person within 3 months after the date on which the plan came into 7
effect. 8
(4) The amendment or repeal, whether in whole or in part, of a 9
contributions plan does not affect the previous operation of the 10
plan or anything duly done under the plan. 11
10 Contributions plans--complying development 12
(1) In relation to an application made to an accredited certifier for a 13
complying development certificate, a contributions plan: 14
(a) is to specify whether or not the accredited certifier must, if 15
a complying development certificate is issued, impose a 16
condition requiring a community infrastructure 17
contribution, and 18
(b) can only authorise the imposition by an accredited certifier 19
of a condition requiring a direct contribution that requires 20
the payment of a monetary contribution, and 21
(c) must specify the amount of the monetary contribution that 22
an accredited certifier must so impose or the precise 23
method by which the amount is to be determined. 24
(2) If an accredited certifier fails to comply with such a requirement 25
of a contributions plan, the consent authority may impose the 26
necessary condition on the complying development certificate 27
and it has effect as if it had been imposed by the accredited 28
certifier. 29
(3) This clause does not limit anything for which a contributions plan 30
may make provision in relation to a consent authority. 31
11 Cross-boundary issues 32
(1) A requirement for a community infrastructure contribution may 33
be imposed for the benefit (or partly for the benefit) of an area 34
that adjoins the local government area in which the development 35
is to be carried out. 36
(2) Any monetary contribution payable pursuant to such a 37
requirement is to be apportioned among the relevant councils: 38
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(a) in accordance with any joint or other contributions plan 1
approved by those councils, or 2
(b) if provision is not made for the apportionment in any such 3
plan--in accordance with the terms of the development 4
consent for the development. 5
(3) Any dispute between the councils concerned is to be referred to 6
the Director-General and resolved in accordance with any 7
direction given by the Director-General. 8
12 Public infrastructure may be provided outside NSW 9
A requirement for a direct contribution may, with the written 10
approval of the Minister, be imposed for the provision of public 11
infrastructure on land in another State or Territory if the area in 12
which the development the subject of the requirement is to be 13
carried out adjoins the other State or Territory. 14
13 Community infrastructure contributions imposed by Minister or 15
Director-General in growth centres etc 16
(1) This clause applies where the Minister or the Director-General, 17
as the consent authority, imposes a requirement for a community 18
infrastructure contribution in relation to: 19
(a) land within a growth centre, or 20
(b) other land within one or more council areas. 21
(2) This Schedule and Part 5B apply to land within a growth centre 22
as if references in this Schedule and that Part to the area were 23
references to the growth centre. 24
(3) Any monetary contribution paid as a community infrastructure 25
contribution: 26
(a) must be paid by the Minister or Director-General to the 27
corporation for the growth centre or to the councils of the 28
areas concerned, and 29
(b) must (together with any additional amount earned from its 30
investment) be applied within a reasonable time for the 31
purpose for which it was required. 32
(4) This clause does not apply in respect of a monetary contribution 33
in respect of development within a growth centre that is specified 34
in Schedule 3 (Community Infrastructure Trust Fund areas) to the 35
Growth Centres (Development Corporations) Act 1974. 36
Note. Section 25 of the Growth Centres (Development Corporations) 37
Act 1974 requires these community infrastructure contributions to be 38
paid into a Community Infrastructure Trust Fund. 39
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Part 2 State infrastructure contributions 1
14 How State infrastructure contributions are imposed 2
(1) Having determined a State infrastructure contribution for 3
development, the Minister may direct a consent authority to 4
require the State infrastructure contribution for the development. 5
The consent authority must comply by requiring the contribution 6
as a condition of development consent for the development. 7
Note. If the Minister is the consent authority, the Minister may impose 8
the condition without such a direction. 9
(2) If a consent authority given a direction to require a State 10
infrastructure contribution fails to comply with the direction in 11
accordance with its terms, the Minister may impose the necessary 12
condition on development consent and it has effect as if it had 13
been imposed by the consent authority. 14
15 Consultation on proposed State infrastructure contributions 15
(1) In determining the level and nature of State infrastructure 16
contributions in respect of development within a particular State 17
contributions area, the Minister may: 18
(a) consult with owners of land in the State contributions area 19
and other relevant stakeholders, or consult with a panel of 20
those owners and stakeholders established by the Minister, 21
or 22
(b) publicly exhibit within the State contributions area a 23
proposal in relation to the level of State infrastructure 24
contributions and seek submissions within a reasonable 25
time in relation to that proposal. 26
(2) The Minister's determination of a State infrastructure 27
contribution: 28
(a) is to contain reasons for the level and nature of the 29
contribution, and 30
(b) is to be made publicly available by the Minister. 31
16 Restrictions on appeals and changes to conditions 32
(1) A person cannot appeal to the Court under this Act (including 33
section 123) or make a review application under Division 7A of 34
Part 4 in respect of a determination or direction of the Minister, 35
or a condition imposed by a consent authority or the Minister, 36
under Division 3 of Part 5B or under this Part. 37
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(2) A condition imposed by a consent authority or the Minister under 1
Division 3 of Part 5B cannot be modified without the approval of 2
the Minister. 3
17 Dedication of land or material public benefit in satisfaction of 4
contribution 5
The consent authority may, with the consent of the Minister, 6
accept the dedication of land or the provision of a material public 7
benefit in partial or full satisfaction of a condition of 8
development consent that requires a State infrastructure 9
contribution. 10
18 Special provision for council infrastructure and other components 11
of development contributions 12
(1) The Minister's determination of a State infrastructure 13
contribution is to identify what part (if any) of the contribution is 14
for the provision of public infrastructure by a council or for any 15
action of a planning authority in connection with the exercise of 16
any statutory function under this Act. 17
(2) Any part of a State infrastructure contribution identified under 18
this clause: 19
(a) is, for the purposes of Division 6 (State Infrastructure 20
Fund) of Part 5B, deemed not to have been received by the 21
consent authority under that Part, and 22
(b) is not to be taken into account in calculating the cost of 23
public infrastructure for the purposes of the requirement 24
that the Minister consult the Treasurer when the cost of 25
public infrastructure exceeds $30 million, and 26
(c) is, if the part is identified as being for the provision of 27
public infrastructure by a council, to be provided to the 28
council and is to be held and applied by the council in 29
accordance with section 116F (Use of development 30
contributions), and 31
(d) is, if the part is identified as being for any action of a 32
planning authority in connection with the exercise of any 33
statutory function under this Act, to be provided to the 34
Department and is to be held and applied by the 35
Department in accordance with section 116F. 36
19 Land contributed as State infrastructure contribution 37
The Minister may direct a consent authority to sell all or part of 38
any land it receives as a State infrastructure contribution or to 39
transfer any such land to a public authority that is to provide, or 40
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has provided, public infrastructure in relation to the development 1
to which the land relates or the class of development to which that 2
development belongs. 3
20 Minister may make, amend or repeal State contributions areas 4
(1) The Minister may, by order published in the Gazette, amend 5
Schedule 5A for the purpose of: 6
(a) creating a State contributions area, or 7
(b) repealing a State contributions area, or 8
(c) changing a State contributions area. 9
(2) The Minister is to consult with the Treasurer before amending 10
Schedule 5A. 11
(3) Any such order may contain savings and transitional provisions. 12
(4) Any such order takes effect on the day that it is published in the 13
Gazette or such later date as may be specified in the order. 14
Part 3 Planning agreements 15
21 Parties to planning agreements 16
(1) Any Minister, public authority or other person approved by the 17
Minister is entitled to be an additional party to a planning 18
agreement and to receive a benefit under the agreement on behalf 19
of the State. 20
(2) A council is not precluded from entering into a joint planning 21
agreement with another council or other planning authority 22
merely because it applies to any land not within, or any purposes 23
not related to, the area of the council. 24
22 Limitations on planning agreements 25
(1) A planning agreement cannot impose an obligation on a planning 26
authority to grant development consent, or to exercise any 27
function under this Act in relation to a change to or the making or 28
revocation of an environmental planning instrument. 29
(2) A planning agreement is void to the extent, if any, to which it 30
requires or allows anything to be done that, when done, would 31
breach a provision of this Act, an environmental planning 32
instrument or a development consent applying to the land 33
concerned. 34
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23 Contents of planning agreements 1
(1) A planning agreement must provide for the following: 2
(a) a description of the land to which the agreement applies, 3
(b) a description of the change to or the making or revocation 4
of the environmental planning instrument, or the 5
development, to which the agreement applies, 6
(c) the nature and extent of the provision to be made by the 7
developer under the agreement, the time or times by which 8
the provision is to be made and the manner by which the 9
provision is to be made, 10
(d) in the case of development, whether the agreement 11
excludes (wholly or in part) or does not exclude the 12
application of Divisions 2 and 3 of Part 5B to the 13
development, 14
(e) if the agreement does not exclude the application to the 15
development of provisions of Division 2 of Part 5B for 16
requiring a direct contribution, whether benefits under the 17
agreement are or are not to be taken into consideration in 18
connection with requiring such a contribution, 19
(f) a mechanism for the resolution of disputes under the 20
agreement, 21
(g) the enforcement of the agreement by a suitable means, 22
such as the provision of a bond or guarantee, in the event 23
of a breach of the agreement by the developer. 24
(2) There is not required to be any connection between the 25
development to which a planning agreement applies and the 26
object of expenditure of any money required to be paid by the 27
agreement. 28
Note. See section 116F, which requires money paid under a planning 29
agreement to be applied for the purpose for which it was paid within a 30
reasonable time. 31
24 Registered planning agreements to run with land 32
(1) A planning agreement can be registered under this clause if the 33
following persons agree to its registration: 34
(a) if the agreement relates to land under the Real Property Act 35
1900--each person who has an estate or interest in the land 36
registered under that Act, 37
(b) if the agreement relates to land not under the Real Property 38
Act 1900--each person who is seised or possessed of an 39
estate or interest in the land. 40
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(2) On lodgment by a planning authority of an application for 1
registration in a form approved by the Registrar-General, the 2
Registrar-General is to register the planning agreement: 3
(a) by making an entry in the relevant folio of the Register 4
kept under the Real Property Act 1900 if the agreement 5
relates to land under that Act, or 6
(b) by registering the agreement in the General Register of 7
Deeds if the agreement relates to land not under the Real 8
Property Act 1900. 9
(3) A planning agreement that has been registered by the 10
Registrar-General under this clause is binding on, and is 11
enforceable against, the owner of the land from time to time as if 12
each owner for the time being had entered into the agreement. 13
(4) A reference in this clause to a planning agreement includes a 14
reference to any amendment or revocation of a planning 15
agreement. 16
25 Circumstances in which planning agreements can or cannot be 17
required to be made 18
(1) A provision of an environmental planning instrument (being a 19
provision made after 8 July 2005) has no effect to the extent that 20
the provision: 21
(a) expressly requires a planning agreement to be entered into 22
before a development application can be made, considered 23
or determined, or 24
(b) expressly prevents a development consent from being 25
granted or having effect unless or until a planning 26
agreement is entered into. 27
(2) A consent authority cannot refuse to grant development consent 28
on the ground that a planning agreement has not been entered into 29
in relation to the proposed development or that the developer has 30
not offered to enter into such an agreement. 31
(3) However, a consent authority can require a planning agreement 32
to be entered into as a condition of a development consent, but 33
only if it requires a planning agreement that is in the terms of an 34
offer made by the developer in connection with: 35
(a) the development application, or a change to or the 36
amendment or revocation of an environmental planning 37
instrument sought by the developer for the purposes of 38
making the development application, or 39
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(b) a commitment made by the proponent in a statement of 1
commitments made under Part 3A. 2
(4) In this clause, planning agreement includes any agreement 3
(however described) containing provisions similar to those 4
contained in a planning agreement. 5
26 Appeals 6
(1) A person cannot appeal to the Court under this Act against the 7
failure of a planning authority to enter into a planning agreement 8
or against the terms of a planning agreement. 9
(2) This clause does not affect the jurisdiction of the Court under 10
section 123 (Restraint etc of breaches of this Act). 11
27 Determinations or directions by Minister 12
The Minister may, generally or in any particular case or class of 13
cases, determine or direct any other planning authority as to: 14
(a) the procedures to be followed in negotiating a planning 15
agreement, or 16
(b) the publication of those procedures, or 17
(c) other standard requirements with respect to planning 18
agreements, or 19
(d) the kinds of material public benefit that a planning 20
agreement may or may not require a developer to provide. 21
28 Regulations--planning agreements 22
The regulations may make provision for or with respect to 23
planning agreements, including the following: 24
(a) the form of planning agreements, 25
(b) the subject-matter of planning agreements, 26
(c) the making, amendment and revocation of planning 27
agreements, including the giving of public notice and 28
inspection by the public, 29
(d) requiring the provision to a planning authority of a copy of 30
a planning agreement and any amendment or notice of 31
revocation of a planning agreement, 32
(e) the public inspection of planning agreements after they 33
have been made. 34
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[8] Schedule 5A, heading and source reference 1
Omit the heading and the source reference. Insert instead: 2
Schedule 5A State contributions areas 3
(Schedule 116A and Schedule 1, clause 20) 4
[9] Schedule 6 Savings, transitional and other provisions 5
Insert in appropriate order in Part 21 (as inserted by Schedule 5.1 [12]): 6
Division 4 Provisions relating to development 7
contributions 8
127 Definitions 9
In this Division: 10
former contributions provisions means the provisions of 11
Division 6 or 6A of Part 4 as in force before their repeal by the 12
amending Act. 13
new contributions provisions means the provisions of Part 5B 14
and Schedule 1. 15
128 Savings and transitional regulations 16
Regulations made under Part 1 of this Schedule have effect 17
despite anything to the contrary in this Part. 18
129 Existing contributions conditions, agreements and actions 19
(1) A condition of development consent imposed under the former 20
contributions provisions is taken to have been imposed under the 21
corresponding provision of the new contributions provisions. 22
(2) A planning agreement in force under the former contributions 23
provisions immediately before the repeal of those provisions by 24
the amending Act is taken to be a planning agreement under the 25
corresponding provisions of the new contributions provisions. 26
(3) Any action taken by the Minister or a consent authority under or 27
for the purposes of the former contributions provisions is, to the 28
extent that the action has any force or effect immediately before 29
the repeal of those provisions by the amending Act, taken to be 30
an action of the Minister or consent authority under and for the 31
purposes of the corresponding provisions of the new 32
contributions provisions. 33
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Schedule 3 Amendments relating to development contributions
(4) A reference in this Act to a State infrastructure contribution 1
includes a reference to a special infrastructure contribution 2
(being a contribution provided for under Subdivision 4 of 3
Division 6 of Part 4) paid or required to be paid by a condition of 4
development consent imposed before the commencement of this 5
clause. 6
(5) The new contributions provisions extend to levies paid or payable 7
under the former contributions provisions as if those levies were 8
monetary contributions paid or payable under the new 9
contributions provisions. 10
130 Existing contributions plans 11
(1) A contributions plan in force under the former contributions 12
provisions immediately before the commencement of this clause 13
(an existing contributions plan) is repealed on 31 March 2010 14
unless the contributions plan is remade by the Minister under this 15
clause before that date. 16
(2) The Minister may, by direction in writing to a council, remake an 17
existing contributions plan on behalf of the council if the Minister 18
is satisfied that the plan provides for a community infrastructure 19
contribution in respect of community infrastructure that is: 20
(a) the subject of a contract with the council for its 21
construction, or 22
(b) the subject of a loan or other debt financing arrangement 23
with a bank or other recognised financial institution for its 24
forward funding, or 25
(c) the subject of a commitment for its construction in the 26
council's budget for the 200708 financial year, or 27
(d) for which land acquisition has been commenced by the 28
council, either by exchange of contracts for purchase or a 29
compulsory acquisition process. 30
(3) The Minister may call on councils to submit contributions plans 31
together with supporting information by 31 March 2009 (or a 32
later date determined by the Minister) for consideration for 33
remaking by the Minister under this clause. 34
(4) In remaking a contributions plan under this clause, the Minister 35
is not subject to section 116I (Councils limited to contributions 36
for key community infrastructure) or to the regulations. 37
(5) The remaking of a contributions plan by the Minister under this 38
clause has effect as if the contributions plan had been made by the 39
council. 40
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(6) A provision of an existing contributions plan that is remade by 1
the Minister under this clause operates to allow the council to 2
require a community infrastructure contribution for community 3
infrastructure even if it is not key community infrastructure 4
(despite section 116I). 5
(7) Subclause (6) does not apply to any provision of a contributions 6
plan that results from the amendment of the contributions plan 7
after it is remade by the Minister unless the effect of the 8
amendment is only: 9
(a) to update a works schedule to reflect revised construction 10
costs or the completion of works on the schedule, or 11
(b) to make minor or consequential amendments arising from 12
any change to an environmental planning instrument or a 13
development control plan. 14
(8) A person cannot appeal to the Court under this Act (despite 15
section 123 or any other provision of this Act) in respect of: 16
(a) the remaking of a contributions plan by the Minister under 17
this clause, or 18
(b) the reasonableness in the particular circumstances of a 19
requirement for a community infrastructure contribution 20
that is determined in accordance with any such 21
contributions plan. 22
(9) In this clause: 23
key community infrastructure means community infrastructure 24
that is key community infrastructure for the purposes of section 25
116I. 26
131 State Infrastructure Fund 27
The State Infrastructure Fund established by the amending Act 28
under the new contributions provisions is a continuation of the 29
Special Contributions Areas Infrastructure Fund established 30
under the former contributions provisions. 31
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3.2 Amendment of Growth Centres (Development Corporations) 1
Act 1974 No 49 2
[1] Sections 25 and 26 3
Insert after section 24: 4
25 Community Infrastructure Trust Fund 5
(1) There is established by this section a fund called the Community 6
Infrastructure Trust Fund. 7
(2) The Fund is to be administered by the Secretary of the Treasury. 8
The Secretary is to consult the Director-General in relation to the 9
administration of the Fund. 10
(3) The following is to be paid into the Fund: 11
(a) monetary contributions paid under, and the proceeds of the 12
sale of land dedicated under, Division 2 (Community 13
infrastructure contributions) of Part 5B of the 14
Environmental Planning and Assessment Act 1979 in 15
respect of development within a growth centre that is 16
specified in Schedule 3 (Community Infrastructure Trust 17
Fund areas), 18
(b) any money appropriated by Parliament for the purposes of 19
the Fund, 20
(c) the proceeds of the investment of money in the Fund, 21
(d) any other money required to be paid into the Fund by or 22
under this or any other Act or the regulations under this 23
Act. 24
(4) The following is to be paid from the Fund: 25
(a) payments to public authorities for the provision of public 26
infrastructure in relation to development, 27
(b) any money required to meet administrative expenses in 28
relation to the Fund, 29
(c) all other money directed or authorised to be paid from the 30
Fund by this Act or by the regulations under this Act. 31
(5) The assets of the Fund can only be applied for the purposes 32
referred to in this section. 33
(6) Money in the Fund may be kept in one or more financial 34
institutions. 35
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(7) The money in the Fund may be invested: 1
(a) in such manner as may be authorised by the Public 2
Authorities (Financial Arrangements) Act 1987, or 3
(b) if that Act does not confer power on the Department to 4
invest the money, in any other manner approved by the 5
Treasurer. 6
(8) The Secretary of the Treasury may delegate any function of the 7
Secretary under this section (other than this power of delegation) 8
to the chief executive of a growth centre that is specified in 9
Schedule 3. 10
26 Minister may make, amend or repeal Community Infrastructure 11
Trust Fund areas 12
(1) The Minister may, by order published in the Gazette, amend 13
Schedule 3 for the purpose of: 14
(a) including a reference to a growth centre, or 15
(b) removing a reference to a growth centre, or 16
(c) changing a reference to a growth centre. 17
(2) Any such order may contain savings and transitional provisions. 18
(3) Any such order takes effect on the day that it is published in the 19
Gazette or such later date as may be specified in the order. 20
[2] Schedule 3 21
Insert after Schedule 2: 22
Schedule 3 Community Infrastructure Trust 23
Fund areas 24
(Section 26) 25
1 All those pieces or parcels of land shown edged heavy red on the 26
map entitled "North West Growth Centre" and the map entitled 27
"South West Growth Centre (Edition 2)", copies of which are 28
deposited in the office of the Growth Centres Commission. 29
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3.3 Amendment of Environmental Planning and Assessment 1
Regulation 2000 2
[1] Clause 25D 3
Omit the clause. Insert instead: 4
25D Public notification of planning agreements 5
(1) A planning agreement cannot be entered into, amended or 6
revoked unless: 7
(a) public notice has been given of the proposed agreement, 8
amendment or revocation, and 9
(b) an explanatory note for the proposed agreement, 10
amendment or revocation has been made available for 11
inspection by the public for a period of not less than 28 12
days. 13
(2) If a proposed planning agreement or amendment of a planning 14
agreement is changed after public notice is given of the proposed 15
agreement or amendment but the change does not result in a 16
significant reduction in the public benefit to be provided by the 17
developer under the proposed agreement or amendment: 18
(a) no further public notice is required under this clause of the 19
proposed agreement or amendment, and 20
(b) the requirement that an explanatory note for the proposed 21
agreement or amendment be made available does not 22
require that an explanatory note be made available for the 23
proposed agreement or amendment as changed. 24
(3) If the proposed planning agreement, amendment or revocation is 25
in connection with a development application or a project 26
application, the responsible planning authority is to ensure that 27
the required public notice of the proposed agreement, amendment 28
or revocation is given: 29
(a) in the case of an agreement in connection with a 30
development application: 31
(i) if practicable, as part of and contemporaneously 32
with, and in the same manner as, any notice of the 33
development application that is required to be given 34
by a consent authority for a development 35
application by or under the Act, or 36
(ii) if it is not practicable for notice to be given 37
contemporaneously, as soon as possible after any 38
notice of the development application that is 39
required to be given by a consent authority for a 40
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development application by or under the Act and in 1
the manner determined by the planning authorities 2
that are parties to the agreement, or 3
(b) in the case of an agreement in connection with a project 4
application: 5
(i) if practicable, as part of and contemporaneously 6
with, and in the same manner as, any notice of an 7
environmental assessment in connection with the 8
application that is required to be given by the 9
Director-General by or under the Act, or 10
(ii) if it is not practicable for notice to be given 11
contemporaneously, as soon as possible after any 12
notice of an environmental assessment for the 13
project that is required to be given by the 14
Director-General by or under the Act and in the 15
manner determined by the planning authorities that 16
are parties to the agreement. 17
(4) If the proposed planning agreement, amendment or revocation is 18
in connection with a proposed change to a local environmental 19
plan, the responsible planning authority is to ensure that the 20
required public notice of the proposed agreement, amendment or 21
revocation is given: 22
(a) if practicable, as part of and contemporaneously with, and 23
in the same manner as, any community consultation on the 24
relevant planning proposal under Part 3 of the Act, or 25
(b) if it is not practicable for notice to be given 26
contemporaneously, as soon as possible after any 27
community consultation on the relevant planning proposal 28
under Part 3 of the Act and in the manner determined by 29
the planning authorities that are parties to the agreement. 30
(5) In the case of a planning agreement of a kind other than an 31
agreement referred to in subclause (1), (2) or (3) of which public 32
notice is required to be given under this clause, the 33
Director-General is to ensure that public notice of the proposed 34
agreement, amendment or revocation is given not less than 28 35
days before the agreement is entered into or amended or revoked 36
and in the manner determined by the planning authorities that are 37
parties to the agreement. 38
(6) The public notice of a proposed agreement, amendment or 39
revocation must specify the arrangements relating to inspection 40
by the public of copies of the explanatory note for the proposed 41
agreement, amendment or revocation. 42
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(7) In this clause: 1
explanatory note means an explanatory note prepared in 2
accordance with clause 25E. 3
project application has the same meaning as it has in Part 1A. 4
responsible planning authority for a proposed planning 5
agreement or the amendment or revocation of a planning 6
agreement is the planning authority that proposes to enter into the 7
planning agreement or the agreement that revokes or amends the 8
planning agreement. 9
[2] Clause 25E Explanatory note 10
Omit clause 25E (5) and (6). Insert instead: 11
(5) If a council is not a party to a planning agreement that applies to 12
the area of the council, a copy of the explanatory note must be 13
provided to the council when a copy of the agreement is provided 14
to the council under clause 25EA. 15
[3] Clause 25EA 16
Insert after clause 25E: 17
25EA Copies of planning agreements to be provided to Minister and 18
council 19
(1) If the Minister is not a party to a planning agreement, the relevant 20
planning authority that is a party to the agreement must provide 21
to the Minister: 22
(a) a copy of the agreement within 14 days after the agreement 23
is entered into, and 24
(b) if the agreement is amended, a copy of the amendment 25
within 14 days after the amendment is made, and 26
(c) if the agreement is revoked, notice of the revocation within 27
14 days after the revocation occurs. 28
(2) If a council is not a party to a planning agreement that applies to 29
the area of the council, the relevant planning authority that is a 30
party to the agreement must provide to the council: 31
(a) a copy of the agreement within 14 days after the agreement 32
is entered into, and 33
(b) if the agreement is amended, a copy of the amendment 34
within 14 days after the amendment is made, and 35
(c) if the agreement is revoked, notice of the revocation within 36
14 days after the revocation occurs. 37
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(3) A planning authority that has entered into one or more planning 1
agreements must, while any such planning agreements remain in 2
force, include in its annual report particulars of compliance with 3
and the effect of the planning agreements during the year to 4
which the report relates. 5
[4] Clauses 31A and 31B 6
Insert after clause 31: 7
31A Key community infrastructure and additional community 8
infrastructure 9
(1) The following community infrastructure is prescribed as key 10
community infrastructure for the purposes of sections 116I and 11
116V of the Act: 12
(a) local roads, 13
(b) local bus facilities, 14
(c) local parks, 15
(d) local sporting, recreational and cultural facilities and local 16
social facilities (being community and child care centres 17
and volunteer rescue and volunteer emergency services 18
facilities), 19
(e) local car parking facilities, 20
(f) drainage and stormwater management works, 21
(g) land for any community infrastructure (except land for 22
riparian corridors), 23
(h) district infrastructure of the kind referred to in paragraphs 24
(a)(e) but only if there is a direct connection with the 25
development to which a contribution relates. 26
(2) Public infrastructure comprising land for riparian corridors 27
cannot be approved under section 116I or 116V of the Act as 28
additional community infrastructure or additional public 29
infrastructure. 30
(3) In this clause: 31
facilities means buildings and works. 32
31B Material to be provided by council seeking approval for additional 33
infrastructure contributions 34
A council requesting the Minister's approval under section 116I 35
or 116V of the Act to the making of a contributions plan or the 36
entering into of a planning agreement providing for development 37
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contributions for additional community infrastructure or the 1
provision of public infrastructure must provide to the Minister: 2
(a) a business plan that establishes how the infrastructure 3
concerned can be fully funded by the council and can be 4
provided and fully operational within the period to be 5
specified in the contributions plan or planning agreement, 6
and 7
(b) a report (provided by a suitably qualified person who is 8
independent of the council) that assesses the proposed 9
development contributions against the key considerations 10
for development contributions for the purposes of Part 5B 11
of the Act. 12
3.4 Amendment of City of Sydney Act 1988 No 48 13
[1] Section 61 Development contributions 14
Omit section 61 (1). Insert instead: 15
(1) Despite Part 5B of the Planning Act, a contributions plan 16
prepared and approved under that Part in respect of the whole or 17
any part of the land to which the Central Sydney Local 18
Environmental Plan 1996 applies may authorise the imposition 19
of a condition that the applicant for development consent pay a 20
levy to the City Council of 1% of the cost, as estimated by the 21
consent authority, of the proposed development. 22
[2] Section 61 (4) (a) 23
Omit "Division 6 of Part 4 of". Insert instead "Part 1 of Schedule 1 to". 24
[3] Section 61 (5) 25
Omit "Part 4". Insert instead "Part 5B". 26
[4] Section 61 (7) 27
Omit the subsection. Insert instead: 28
(7) A condition authorised by this section is not affected by the 29
enactment of the Environmental Planning and Assessment 30
Amendment (Development Contributions) Act 2005. However, 31
this section ceases to apply if a contributions plan is prepared and 32
approved under Part 5B of the Planning Act that authorises a 33
requirement for an indirect contribution under Division 2 of that 34
Part in relation to the land to which this section applies. 35
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Schedule 4 Amendments relating to certification of 1
development 2
(Section 3) 3
4.1 Amendment of Environmental Planning and Assessment 4
Act 1979 No 203 5
[1] Section 4 Definitions 6
Omit the definition of accredited certifier from section 4 (1). 7
[2] Section 4 (1) 8
Insert the following definitions in alphabetical order: 9
accredited certifier, in relation to matters of a particular kind, 10
means the holder of a certificate of accreditation as an accredited 11
certifier under the Building Professionals Act 2005 in relation to 12
those matters. 13
design certificate means a design certificate required to be issued 14
under section 109IA. 15
[3] Section 80A Imposition of conditions 16
Insert after section 80A (6) (c): 17
(d) ensuring compliance with the terms of the development 18
consent during the carrying out of any building work or 19
subdivision work. 20
[4] Section 80A (7A) 21
Insert after section 80A (7): 22
(7A) Despite subsection (7), if the regulations make provision for or 23
with respect to the maximum amount of security that may be 24
required for a purpose referred to in subsection (6) (d), the 25
security required for any such purpose is not to exceed the 26
maximum amount determined in accordance with the 27
regulations. 28
[5] Section 80A (10)(10AC) 29
Omit section 80A (10). Insert instead: 30
(10) The funds realised from a security may: 31
(a) be paid out to meet any cost referred to in subsection (6) 32
(a)(c), and 33
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Schedule 4 Amendments relating to certification of development
(b) be paid out to meet any cost referred to in subsection (6) 1
(d), but only in the circumstances prescribed by the 2
regulations. 3
(10AA) Any balance of the funds realised from a security remaining after 4
meeting the costs referred to in subsection (10) is to be refunded 5
to, or at the direction of, the persons who provided the security. 6
(10AB) A person who provides security for the purposes referred to in 7
subsection (6) (d) is entitled to request the release of any such 8
balance of funds realised from the security only after: 9
(a) in the case of building work where an occupation 10
certificate is issued: 11
(i) the date of issue of a final occupation certificate as 12
a result of the building work, or 13
(ii) the date that is 12 months after the date of issue of 14
an interim occupation certificate as a result of the 15
building work, 16
whichever occurs first, or 17
(b) in the case of building work where no occupation 18
certificate is issued--the date of the first lawful occupation 19
or use of a building or part of a building resulting from that 20
building work (as determined in accordance with section 21
109M), or 22
(c) in the case of subdivision work--the date of issue of a 23
subdivision certificate as a result of the subdivision work. 24
(10AC) If the consent authority has paid out any of those funds for a 25
purpose referred to in subsection (6) (d), the consent authority 26
must, within 14 days after receiving a request under subsection 27
(10AB) for the release of the funds, give written reasons to the 28
person who provided the security as to why the consent authority 29
considers it was entitled to use those funds. 30
[6] Section 81A Effects of development consents and commencement of 31
development 32
Insert ", and the principal certifying authority if that is not the council," after 33
"council" wherever occurring in section 81A (2) (c) and (4) (c). 34
[7] Section 81A (7) 35
Omit "300 penalty units". Insert instead "1,000 penalty units". 36
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[8] Section 85A Process for obtaining complying development certificates 1
Omit "the council or accredited certifier is satisfied that" from section 85A 2
(10A). 3
[9] Section 86 Commencement of complying development 4
Insert ", and the principal certifying authority if that is not the council," after 5
"council" wherever occurring in section 86 (1) (b) and (2) (b). 6
[10] Section 98A Appeal concerning security 7
Insert "that relates to security of a kind referred to in section 80A (6) (a)(c)" 8
after "subsection (1) (b)" in section 98A (3). 9
[11] Section 98A (4) 10
Insert after section 98A (3): 11
(4) An appeal with respect to a failure or refusal referred to in 12
subsection (1) (b) that relates to security of a kind referred to in 13
section 80A (6) (d) may be made within 6 months after the date 14
after which the person who provided the security may request the 15
release of funds realised from the security under section 80A 16
(10AB). 17
[12] Section 109D Certifying authorities 18
Insert after section 109D (1): 19
(1A) For the purposes of subsection (1) (d) (iv), an environmental 20
planning instrument that identifies subdivision in respect of 21
which a subdivision certificate may be issued by an accredited 22
certifier may place restrictions on the issue of such certificates by 23
accredited certifiers. 24
[13] Section 109E Principal certifying authorities 25
Omit section 109E (1). Insert instead: 26
(1) The person having the benefit of a development consent or 27
complying development certificate for development: 28
(a) is to appoint a principal certifying authority in respect of 29
building work involved in the development and a principal 30
certifying authority in respect of subdivision work 31
involved in the development, and 32
(b) may appoint only the consent authority, the council or an 33
accredited certifier as the principal certifying authority for 34
the building work or subdivision work, and 35
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Schedule 4 Amendments relating to certification of development
(c) may appoint the same principal certifying authority for 1
both types of work or different certifying authorities. 2
[14] Section 109E (2) 3
Omit "development involving". 4
[15] Section 109EA Replacement of principal certifying authorities 5
Omit section 109EA (1) (b). Insert instead: 6
(b) the current principal certifying authority, the proposed 7
principal certifying authority and a person who is eligible 8
to appoint a principal certifying authority for the 9
development agree. 10
[16] Section 109EB 11
Insert after section 109EA: 12
109EB Directions by certifying authorities 13
(1) A reference in this section to a non-compliance in respect of an 14
aspect of development is a reference to: 15
(a) a failure to comply with a condition of a development 16
consent relating to the manner in which construction of 17
that aspect of development is carried out on the relevant 18
site (including, for example, a condition relating to the 19
hours during which construction may be carried out or the 20
measures to be taken to reduce impacts on adjoining land), 21
and 22
(b) any matter arising during the course of carrying out that 23
aspect of development that would prevent the issuing of a 24
final occupation certificate or a subdivision certificate in 25
respect of that aspect of development. 26
(2) If a certifying authority for an aspect of development becomes 27
aware of any non-compliance in respect of the aspect of 28
development, the certifying authority must issue a notice in 29
writing to the person responsible for carrying out that aspect of 30
the development: 31
(a) identifying the matter that has resulted or would result in 32
the non-compliance, and 33
(b) directing the person to take specified action within a 34
specified period to remedy the matter. 35
(3) If a certifying authority gives a direction under this section and 36
the direction is not complied with within the time specified in the 37
notice containing the direction, the certifying authority that 38
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issued the direction is, within the period prescribed by the 1
regulations, to send a copy of the notice to the consent authority 2
and to notify the consent authority of the fact that the direction 3
has not been complied with. 4
(4) The regulations may make provision for or with respect to the 5
following: 6
(a) the procedure for issuing notices under this section, 7
(b) requirements in relation to follow-up action, 8
(c) the keeping of records in relation to notices given and 9
follow-up action taken, 10
(d) requirements for any matter or record relating to a notice 11
or follow-up action to be notified to specified persons. 12
[17] Section 109IA 13
Insert after section 109I: 14
109IA Design certificates required for certain aspects of development 15
(1) A Part 4A certificate must not be issued in relation to any aspect 16
of development required by the regulations to be designed by a 17
person holding accreditation under the Building Professionals 18
Act 2005 unless: 19
(a) that aspect of the development was designed by the holder 20
of a certificate of accreditation under that Act that 21
authorises the holder to prepare such designs, and 22
(b) the holder has issued a design certificate in relation to the 23
design certifying that he or she prepared the design and in 24
doing so complied with the relevant requirements of this 25
Act and the regulations. 26
(2) The regulations may make provision for or with respect to any of 27
the following: 28
(a) the preparation of designs referred to in this section, 29
(b) the form and content of design certificates issued for the 30
purposes of this section, 31
(c) requirements relating to the preparation of such design 32
certificates, 33
(d) savings and transitional provisions modifying the 34
application of subsection (1) as a consequence of the 35
making of a regulation for the purposes of that subsection. 36
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[18] Section 109L Accredited certifiers may issue notices requiring work to 1
be carried out 2
Omit the section. 3
[19] Section 109PA 4
Insert after section 109P: 5
109PA Certifying authorities may apply for advice 6
(1) Before issuing a construction certificate for building work or 7
subdivision work, a certifying authority may make an application 8
to the consent authority for advice as to whether, in the opinion 9
of the consent authority, the design and construction of any 10
building or work to which the certificate relates is consistent with 11
the relevant development consent. 12
(2) Before issuing a final occupation certificate for a building or part 13
of a building, a certifying authority may make an application to 14
the consent authority for advice as to whether, in the opinion of 15
the consent authority, the design and construction of the building 16
is consistent with the relevant development consent or complying 17
development certificate. 18
(3) If the consent authority does not deal with an application made to 19
it under this section within 21 days after receiving the 20
application, the consent authority is taken to have given advice 21
that the building, part of the building or work concerned is 22
consistent with the relevant development consent or complying 23
development certificate. 24
(4) If a consent authority has given advice under this section that the 25
design and construction of a building, part of a building or work 26
is consistent with the relevant development consent or complying 27
development certificate, a construction certificate or final 28
occupation certificate issued in reliance on that advice may not be 29
challenged, reviewed, quashed or called into question before any 30
court of law or administrative review body in any proceedings at 31
the request of the consent authority on the basis that the design 32
and construction of the building (or part) or work concerned is 33
not consistent with the relevant development consent or 34
complying development certificate. 35
(5) The regulations may make provision for or with respect to 36
applications for advice under this section (including the 37
information to be provided with such applications), the form in 38
which advice is to be given under this section and fees in 39
connection with the making of such applications and the giving 40
of advice. 41
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(6) In this section: 1
(a) a reference to the design and construction of a building is, 2
in relation to the issue of a construction certificate, a 3
reference to the design and construction of the building as 4
depicted in the plans and specifications furnished to the 5
certifying authority and as described in any other 6
information furnished to the certifying authority in 7
accordance with the regulations, and 8
(b) a reference to a building, part of a building or work being 9
consistent with a development consent or complying 10
development certificate is a reference to the building, part 11
or work being consistent with the development consent or 12
complying development certificate as determined in 13
accordance with the regulations (if any). 14
[20] Section 109Q Regulations under Part 4A 15
Omit section 109Q (1) (a). Insert instead: 16
(a) the documents to be provided to, and the matters to be 17
notified to, a consent authority, council or certifying 18
authority for the purposes of this Part, 19
[21] Section 109Q (1) (c)(e) 20
Insert after section 109Q (1) (b): 21
(c) applications for Part 4A certificates, 22
(d) the form and content of Part 4A certificates, 23
(e) the manner in which complaints in respect of development 24
are to be dealt with by certifying authorities. 25
[22] Section 109ZK Limitation on time when building action or subdivision 26
action may be brought 27
Omit section 109ZK (1). Insert instead: 28
(1) Despite any Act or law to the contrary, a building action may not 29
be brought in relation to any building work: 30
(a) more than 10 years after the date on which the relevant 31
final occupation certificate is issued, or 32
(b) in a case where no final occupation certificate is issued, 33
more than 10 years after: 34
(i) the last date on which the building work was 35
inspected by a certifying authority, or 36
(ii) if no such inspection has been conducted, the date 37
on which that part of the building in relation to 38
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Schedule 4 Amendments relating to certification of development
which the building work was carried out is first 1
occupied or used. 2
(1A) Despite any Act or law to the contrary, a subdivision action may 3
not be brought in relation to any subdivision work more than 10 4
years after: 5
(a) in the case of work completed before the relevant 6
subdivision certificate is issued, the date on which the 7
relevant subdivision certificate is issued, or 8
(b) in the case of work completed after the relevant 9
subdivision certificate is issued, the date on which the 10
compliance certificate that certifies that the work has been 11
completed is issued. 12
[23] Section 117B 13
Insert after section 117A: 14
117B Action that may be taken against council following investigation 15
(1) If the Building Professionals Board has made its final report of 16
the results of an investigation under section 45 of the Building 17
Professionals Act 2005 in relation to a council publicly available 18
and is of the opinion that the council has not taken appropriate 19
action about a matter investigated, the Board may: 20
(a) make recommendations to the Director-General of the 21
Department of Local Government as to the measures that 22
it considers appropriate to be taken in relation to the 23
matter, or 24
(b) recommend to the Minister that the Minister take action 25
against the council under this section. 26
Note. Section 45 of the Building Professionals Act 2005 enables 27
the Building Professionals Board to investigate the work and 28
activities of a council in its capacity as a certifying authority. 29
(2) The Minister may, on the recommendation of the Board under 30
this section and following consultation with the Minister 31
administering the Local Government Act 1993, make an order 32
suspending a council's authority to exercise all or specified 33
functions of a certifying authority. 34
(3) A council must comply with an order under this section that 35
relates to the council. 36
(4) Despite any other provision of this Act, a council that is the 37
subject of an order must not exercise any function of a certifying 38
authority while the council's authority to exercise that function is 39
suspended by operation of the order. 40
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(5) An order does not operate to suspend a council's authority to 1
exercise the functions of a certifying authority in relation to any 2
matter being dealt with by the council as a certifying authority 3
before the commencement of the order, unless the order provides 4
otherwise. 5
(6) An order may contain provisions of a savings or transitional 6
nature consequent on the suspension contained in the order. 7
(7) Without limiting subsection (6), an order may contain provisions 8
for or with respect to the following: 9
(a) the way in which any pending matter being dealt with by 10
the relevant council as a certifying authority is to be 11
completed, including, for example, enabling the council to 12
complete any such matter or providing for the matter to be 13
completed by an accredited certifier, 14
(b) directing any fee paid to the council to act as a certifying 15
authority in relation to any pending matter to be refunded, 16
(c) directing the council to pay any fees required to be paid to 17
an accredited certifier to complete any pending matter 18
being dealt with by the council as a certifying authority. 19
(8) The Minister must revoke an order if satisfied that the relevant 20
council has implemented measures to address the matters that led 21
to the making of the order. 22
(9) Nothing prevents the Minister from amending an order made 23
under this section by another order, including amending the first 24
order to change the functions of a certifying authority to which 25
the first order relates. 26
(10) An order under this section must be in writing and published in 27
the Gazette and takes effect on the day on which it is published in 28
the Gazette or on a later day specified in the order. 29
(11) Section 109E (1AA) does not require a council to accept an 30
appointment as principal certifying authority if the council would 31
contravene subsection (4) by accepting the appointment. 32
(12) An order under this section may be made whether or not any 33
action has been taken by the Minister under section 118 in 34
relation to the exercise of all or any of the functions of the council 35
concerned. 36
[24] Section 118A Power of entry 37
Insert "(other than section 118BA)" after "this Division" in section 118A (2C). 38
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[25] Section 118BA 1
Insert after section 118B: 2
118BA Power of authorised persons to require answers and record 3
evidence 4
(1) A person authorised to enter premises under this Division (an 5
authorised person) may require an accredited certifier, a person 6
carrying out building work or subdivision work or any other 7
person whom the authorised person suspects on reasonable 8
grounds to have knowledge of matters in respect of which 9
information is reasonably required to enable the council 10
concerned to exercise its functions under this Act to answer 11
questions in relation to those matters. 12
(2) An authorised person may require a corporation to nominate a 13
director or officer of the corporation who is authorised to 14
represent the corporation for the purposes of answering questions 15
under this section. 16
(3) An authorised person may, by notice in writing, require a person 17
referred to in subsection (1) to attend at a specified place and time 18
to answer questions under this section if attendance at that place 19
is reasonably required in order that the questions can be properly 20
put and answered. 21
(4) The place and time at which a person may be required to attend 22
under subsection (3) is to be: 23
(a) a place and time nominated by the person, or 24
(b) if the place and time nominated is not reasonable in the 25
circumstances or a place and time is not nominated by the 26
person, a place and time nominated by the authorised 27
person that is reasonable in the circumstances. 28
(5) An authorised person may cause any questions and answers to 29
questions given under this section to be recorded if the authorised 30
person has informed the person who is to be questioned that the 31
record is to be made. 32
(6) A record may be made using sound recording apparatus or audio 33
visual apparatus, or any other method determined by the 34
authorised person. 35
(7) A copy of any such record must be provided by the authorised 36
person to the person who is questioned as soon as practicable 37
after it is made. 38
(8) A record may be made under this section despite the provisions 39
of any other law. 40
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[26] Section 118N 1
Omit the section. Insert instead: 2
118N Obstruction of authorised persons 3
(1) A person must not: 4
(a) without reasonable excuse, refuse or fail to comply with 5
any notice given or requirement made, or to answer any 6
question asked, by an authorised person under this 7
Division, or 8
(b) wilfully delay, hinder or obstruct an authorised person in 9
the exercise of the authorised person's functions under this 10
Division, or 11
(c) furnish an authorised person with information that the 12
person knows (or ought reasonably to know) is false or 13
misleading in a material particular. 14
Maximum penalty: 20 penalty units. 15
(2) Section 122U applies to and in respect of: 16
(a) an offence under subsection (1) of failing or refusing to 17
comply with a requirement to furnish information or 18
answer a question under this Division in the same way as 19
it applies to an offence of failing or refusing to comply 20
with a requirement to furnish information or answer a 21
question under Division 2C, and 22
(b) a requirement to furnish information or answer a question 23
under this Division in the same way as it applies to a 24
requirement to furnish information or answer a question 25
under Division 2C. 26
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[27] Section 121B Orders that may be given by consent authority or by 1
Minister etc 2
Insert at the end of the Table to section 121B (1): 3
19 To cease (a) Building work or Owner of land or
carrying out subdivision work any person
specified is being carried apparently engaged
building work out in in carrying out the
or subdivision contravention of building work or
work this Act subdivision work
(b) Building work or
subdivision work
is being carried
out that affects the
support of
adjoining
premises
[28] Section 121CA 4
Insert after section 121C: 5
121CA Compliance cost notices 6
(1) A person (the relevant authority) who gives an order under this 7
Division to another person may, by notice in writing served on 8
the other person, require the other person to pay all or any 9
reasonable costs and expenses incurred by the relevant authority 10
in connection with: 11
(a) monitoring action under the order, and 12
(b) ensuring that the order is complied with, and 13
(c) any other associated matters. 14
(2) A notice under subsection (1) (a compliance cost notice) is to 15
specify the amount required to be paid and a reasonable period 16
within which the amount is to be paid or, if the regulations 17
prescribe the period to be allowed for payment, that period. 18
(3) The relevant authority may recover any unpaid amounts specified 19
in a compliance cost notice as a debt in a court of competent 20
jurisdiction. 21
(4) If the person given a compliance cost notice complies with the 22
notice but was not the person who was responsible for the 23
situation giving rise to the issue of the notice, the cost of 24
complying with the notice may be recovered by the person who 25
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complied with the notice as a debt in a court of competent 1
jurisdiction from the person who was responsible. 2
(5) The regulations may make provision for or with respect to the 3
following: 4
(a) the issue of compliance cost notices, 5
(b) the form of compliance cost notices, 6
(c) limiting the amounts that may be required to be paid under 7
compliance cost notices or the matters in respect of which 8
costs and expenses may be required to be paid under those 9
notices. 10
[29] Section 121D Circumstances in which compliance with sections 11
121F121K is required 12
Omit section 121D (a). Insert instead: 13
(a) order No 8 or No 19 in the Table to section 121B (1), or 14
[30] Section 121ZKA 15
Insert after section 121ZK: 16
121ZKA Appeals concerning compliance cost notices 17
(1) A person on whom a notice under section 121CA (a compliance 18
cost notice) is served may appeal against the notice to the Local 19
Court within 28 days after the service of the notice on the person. 20
(2) If an appeal is lodged under section 121ZK against an order in 21
relation to which a compliance cost notice has been issued: 22
(a) an appeal may be lodged against the compliance cost 23
notice in the same way as, and at the same time as, the 24
appeal against the order, and 25
(b) the Court may deal with the appeal against the compliance 26
cost notice at the same time as it deals with the appeal 27
against the order. 28
(3) On hearing an appeal against a compliance cost notice, the Local 29
Court or the Court may: 30
(a) revoke the notice, or 31
(b) modify the notice, or 32
(c) make any other order with respect to the notice as the 33
Court thinks fit. 34
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[31] Section 157 Regulations 1
Insert at the end of section 157 (1) (f): 2
, or 3
(g) the documents to be provided to, and the matters to be 4
notified to, a consent authority, council or certifying 5
authority under this Act. 6
[32] Schedule 6 Savings, transitional and other provisions 7
Insert in appropriate order in Part 21 (as inserted by Schedule 5.1 [12]): 8
Division 5 Provisions relating to certification 9
132 Section 109L notices 10
Section 109L is taken to continue to have effect in relation to 11
notices served under that section before its repeal. 12
133 Section 109ZK 13
The amendment made to section 109ZK by the amending Act 14
does not apply to any building work or subdivision work 15
commenced before the commencement of the amendment. 16
4.2 Amendment of Environmental Planning and Assessment 17
Regulation 2000 18
[1] Clause 129B 19
Insert after clause 129A: 20
129B Restriction on issue of complying development certificate 21
A certifying authority must not issue a complying development 22
certificate for development unless a council or an accredited 23
certifier has carried out an inspection of the site of the 24
development. 25
[2] Clause 139 Applications for construction certificates 26
Insert after clause 139 (1): 27
(1A) The application may only be made by a person who is eligible to 28
appoint a principal certifying authority for the relevant 29
development. 30
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[3] Clause 143B 1
Insert after clause 143A: 2
143B Restriction on issue of certain construction certificates without 3
inspection 4
A certifying authority must not issue a construction certificate for 5
development on a site which affects an existing building unless a 6
council, a consent authority or an accredited certifier has carried 7
out an inspection of the building. 8
[4] Clause 145 Compliance with development consent and Building Code of 9
Australia 10
Omit "not inconsistent with" wherever occurring in clause 145 (1) (a) and (2). 11
Insert instead "consistent with". 12
[5] Clause 149 Applications for occupation certificates 13
Insert after clause 149 (2A): 14
(2B) The application may only be made by a person who is eligible to 15
appoint a principal certifying authority for the relevant 16
development. 17
[6] Clause 154D 18
Insert after clause 154C: 19
154D Compliance with development consent 20
(1) If a certifying authority issues an interim occupation certificate 21
for a building or part of a building where the design and 22
construction of the building or part are not consistent with the 23
relevant development consent or complying development 24
certificate, the certifying authority must record on the certificate 25
information identifying the nature and extent of the 26
inconsistency. 27
(2) A certifying authority must not issue a final occupation certificate 28
for a building or part of a building unless the design and 29
construction of the building or part are consistent with the 30
relevant development consent or complying development 31
certificate. 32
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[7] Clause 157 Applications for subdivision certificates 1
Insert after clause 157 (2): 2
(2A) The application may only be made: 3
(a) by the owner of the land to which the application relates, or 4
(b) by any other person, with the consent in writing of the 5
owner of that land. 6
[8] Clause 162A Critical stage inspections required by section 109E (3) (d) 7
Omit clause 162A (4) (a), (5) (a) and (6) (a). 8
[9] Clause 162A (7) 9
Omit the subclause. 10
[10] Clause 162A (7A) 11
Insert before clause 162A (8): 12
(7A) After the commencement of this subclause, the following 13
inspections of building work must be made in addition to those 14
required by the other provisions of this clause for the building 15
work: 16
(a) in the case of a swimming pool, after the construction of 17
the swimming pool is completed and the fence (if one is 18
required) has been erected and before the pool is filled with 19
water, 20
(b) in the case of a class 2, 3, 4, 5, 6, 7, 8 or 9 building, after 21
excavation for, and prior to the placement of, any footings, 22
(c) in the case of a class 2, 3, 4, 5, 6, 7, 8 or 9 building, before 23
all walls, floors and ceilings required by the Building Code 24
of Australia to have a fire-resistance level specified in that 25
Code are enclosed, 26
(d) in the case of a class 2, 3, 4 or 9c building, before all walls, 27
floors and ceilings required by the Building Code of 28
Australia to comply with sound insulation requirements 29
specified in that Code are enclosed. 30
[11] Clause 162C Progress inspection unavoidably missed 31
Omit clause 162C (5). Insert instead: 32
(5) As soon as practicable after becoming aware that an inspection, 33
other than a final inspection, has been missed, the principal 34
certifying authority: 35
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Amendments relating to certification of development Schedule 4
(a) must notify that fact to the person who appointed the 1
principal certifying authority and in the case of work for 2
which a principal contractor is required to be appointed, 3
the principal contractor or, in the case of work being done 4
by an owner builder, the owner builder, and 5
(b) must send a copy of the record made under this clause to 6
the person who appointed the principal certifying 7
authority. 8
[12] Clause 260 What is the fee for a building certificate? 9
Insert after clause 260 (3): 10
(3A) An additional fee determined in accordance with subclause (3B) 11
may be charged for an application for a building certificate in 12
relation to a building where the applicant for the certificate is the 13
person who erected the building or on whose behalf the building 14
was erected and any of the following circumstances apply: 15
(a) where a development consent, complying development 16
certificate or construction certificate was required for the 17
erection of the building and no such consent or certificate 18
was obtained, 19
(b) where a penalty notice has been issued for an offence 20
under section 76A (1) of the Act in relation to the erection 21
of the building and the person to whom it was issued has 22
paid the penalty required by the penalty notice in respect 23
of the alleged offence (or if the person has not paid the 24
penalty and has not elected to have the matter dealt with by 25
a court, enforcement action has been taken against the 26
person under Division 4 of Part 4 of the Fines Act 1996), 27
(c) where order No 2, 12, 13, 15, 18 or 19 in the Table to 28
section 121B (1) of the Act has been given in relation to the 29
building unless the order has been revoked on appeal, 30
(d) where a person has been found guilty of an offence under 31
the Act in relation to the erection of the building, 32
(e) where the court has made a finding that the building was 33
erected in contravention of a provision of the Act. 34
(3B) The additional fee payable under subclause (3A) is the total of the 35
following amounts: 36
(a) the amount of the maximum fee that would be payable if 37
the application were an application for development 38
consent, or a complying development certificate (if 39
appropriate), authorising the erection or alteration of any 40
part of the building to which the application relates that has 41
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Schedule 4 Amendments relating to certification of development
been erected or altered in contravention of the Act in the 1
period of 24 months immediately preceding the date of the 2
application, 3
(b) the amount of the maximum fee that would be payable if 4
the application were an application to the council for a 5
construction certificate relating to the erection or alteration 6
of any part of the building to which the application relates 7
that has been erected or altered in contravention of the Act 8
in the period of 24 months immediately preceding the date 9
of the application. 10
(3C) If an application for a building certificate is made in relation to 11
part only of a building, a reference in subclause (3A) to a building 12
is taken to be a reference to the part of a building that is the 13
subject of the application. 14
[13] Schedule 1 Forms 15
Omit clause 5 (g). 16
4.3 Amendment of Strata Schemes (Freehold Development) Act 17
1973 No 68 18
[1] Section 36A 19
Insert after section 36: 20
36A Persons who may apply for strata certificate 21
An application for a strata certificate may only be made: 22
(a) by the owner of the land to which the application relates, or 23
(b) by any other person, with the consent in writing of the 24
owner of that land. 25
[2] Section 37AA 26
Insert after section 37A: 27
37AA Requirements relating to issue of strata certificates 28
A council or accredited certifier is to be satisfied before issuing a 29
strata certificate that any inspections required by the regulations 30
have been carried out. 31
[3] Section 37E Accreditation of certifiers 32
Insert "and Parts 7 and 8" after "Part 6" in section 37E (1). 33
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4.4 Amendment of Strata Schemes (Leasehold Development) 1
Act 1986 No 219 2
[1] Section 65A 3
Insert after section 65: 4
65A Persons who may apply for strata certificate 5
An application for a strata certificate may only be made: 6
(a) by the owner of the land to which the application relates, or 7
(b) by any other person, with the consent in writing of the 8
owner of that land. 9
[2] Section 66AA 10
Insert after section 66A: 11
66AA Requirements relating to issue of strata certificates 12
A council or accredited certifier is to be satisfied before issuing a 13
strata certificate that any inspections required by the regulations 14
have been carried out. 15
[3] Section 66E Accreditation of certifiers 16
Insert "and Parts 7 and 8" after "Part 6" in section 66E (1). 17
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Schedule 5 Miscellaneous amendments
Schedule 5 Miscellaneous amendments 1
(Section 3) 2
5.1 Amendment of Environmental Planning and Assessment 3
Act 1979 No 203 4
[1] Section 4 Definitions 5
Omit the definitions of place of public entertainment and public 6
entertainment from section 4 (1). 7
[2] Section 79BA Consultation and development consent--certain bush fire 8
prone land 9
Omit section 79BA (1). Insert instead: 10
(1) Development consent cannot be granted for the carrying out of 11
development for any purpose (other than a subdivision of land 12
that could lawfully be used for residential or rural residential 13
purposes or development for a special fire protection purpose) on 14
bush fire prone land unless the consent authority: 15
(a) is satisfied that the development conforms to the 16
specifications and requirements of the document entitled 17
Planning for Bush Fire Protection, ISBN 0 9751033 2 6, 18
prepared by the NSW Rural Fire Service in co-operation 19
with the Department of Planning (or, if another document 20
is prescribed by the regulations for the purposes of this 21
paragraph, that document) that are relevant to the 22
development (the relevant specifications and 23
requirements), or 24
(b) has been provided with a certificate by a person who is 25
recognised by the NSW Rural Fire Service as a qualified 26
consultant in bush fire risk assessment stating that the 27
development conforms to the relevant specifications and 28
requirements. 29
(1A) If the consent authority is satisfied that the development does not 30
conform to the relevant specifications and requirements, the 31
consent authority may, despite subsection (1), grant consent to 32
the carrying out of the development but only if it has consulted 33
with the Commissioner of the NSW Rural Fire Service 34
concerning measures to be taken with respect to the development 35
to protect persons, property and the environment from danger 36
that may arise from a bush fire. 37
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[3] Section 108 Regulations respecting existing use 1
Omit "and" from section 108 (1) (c) and section 108 (1) (d). 2
[4] Section 109 Continuance of and limitation on other lawful uses 3
Omit section 109 (4). 4
[5] Section 116GA Crown development for public entertainment 5
(renumbered as section 115ZA by Schedule 3.1 [5] or as section 109S by 6
Schedule 2.2 [58]) 7
Omit the section. 8
[6] Section 121B Orders that may be given by consent authority or by 9
Minister etc 10
Omit item 13A of the Table to section 121B (1). 11
[7] Section 155 12
Insert after section 154: 13
155 Paper subdivisions 14
Schedule 5 has effect. 15
[8] Section 157 Regulations 16
Omit section 157 (1) (d2). Insert instead: 17
(d2) entertainment venues (including in connection with the 18
existing use of premises), or 19
[9] Schedule 5 20
Insert in appropriate order: 21
Schedule 5 Paper subdivisions 22
(Section 155) 23
1 Definitions 24
In this Schedule: 25
development plan--see clause 6. 26
planning purpose--see clause 3 (1) (c). 27
relevant authority for subdivision land means the authority 28
designated by a subdivision order as the relevant authority for the 29
land. 30
subdivision land means land subject to a subdivision order. 31
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Environmental Planning and Assessment Amendment Bill 2008
Schedule 5 Miscellaneous amendments
subdivision order means an order under clause 3. 1
subdivision works means works for the following purposes: 2
(a) roads, 3
(b) water supply, sewerage services and drainage, 4
(c) telecommunications, 5
(d) electricity supply. 6
2 Subdivision authorities 7
Any of the following authorities may be designated in a 8
subdivision order as the relevant authority for the subdivision 9
land: 10
(a) the corporation, 11
(b) a council, 12
(c) Landcom, 13
(d) a development corporation established under the Growth 14
Centres (Development Corporations) Act 1974, 15
(e) any other body prescribed by the regulations. 16
3 Subdivision orders 17
(1) The Minister may, by order published in the Gazette: 18
(a) declare specified land to be subdivision land, and 19
(b) specify the relevant authority for the subdivision land, and 20
(c) specify the purpose for which the order is made (the 21
planning purpose), and 22
(d) specify the functions (if any) under this Schedule 23
conferred on the relevant authority, and 24
(e) specify the conditions (if any) to which the exercise of 25
those functions are subject, and 26
(f) specify the subdivision works (if any) to be undertaken by 27
the relevant authority in respect of the subdivision land. 28
(2) The Minister may make a subdivision order only if: 29
(a) the Minister is of the opinion that it is desirable to do so to 30
promote and co-ordinate the orderly and economic use and 31
development of the land affected by the order, and 32
(b) the land has been subdivided and is held by more than one 33
owner and the Minister is satisfied that the land is land for 34
which no provision or inadequate provision has been made 35
for subdivision works, and 36
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Miscellaneous amendments Schedule 5
(c) that land is subject to an environmental planning 1
instrument, or a planning proposal, that will facilitate the 2
proposed planning purpose, and 3
(d) the Minister has consulted with the proposed relevant 4
authority, any other Minister responsible for that authority 5
and the council of the area in which that land is situated, 6
and 7
(e) the Minister is satisfied that a development plan for that 8
land has been prepared by the relevant authority in 9
accordance with this Schedule, and 10
(f) the Minister has considered any provisions of the 11
development plan that modify or disapply the provisions of 12
Division 4 of Part 3 of the Land Acquisition (Just Terms 13
Compensation) Act 1991, and 14
(g) at least 60% of the total number of owners of that land, and 15
the owners of at least 60% of the total area of that land, 16
have consented to the proposed development plan. 17
(3) For the purposes of subclause (2) (b) and (g), 2 or more owners 18
of the same lot are to be treated as one owner. 19
4 Functions of relevant authority 20
(1) A relevant authority has the functions conferred on it by a 21
subdivision order. 22
(2) A relevant authority may only exercise functions conferred on it 23
under a subdivision order for the purposes of, or purposes 24
ancillary to, the planning purpose specified in the subdivision 25
order. 26
(3) Functions conferred on a relevant authority by a subdivision 27
order are in addition to any other functions conferred on the 28
authority under any other law. 29
(4) Clauses 713 set out the functions that may be conferred on a 30
relevant authority under a subdivision order but do not otherwise 31
confer those functions on a relevant authority. 32
(5) A relevant authority may not exercise functions under clause 7 or 33
9 unless there is a development plan in force in relation to the 34
subdivision land. 35
5 Obligations of relevant authority 36
A relevant authority must, in accordance with the subdivision 37
order and any development plan applicable to the subdivision 38
land, give effect to the planning purpose specified in the order 39
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Schedule 5 Miscellaneous amendments
and must undertake or arrange for the undertaking of any 1
subdivision works specified in the order. 2
6 Development plans 3
(1) An authority referred to in clause 2 may, and must at the request 4
of the Minister, prepare a development plan for subdivision land 5
or proposed subdivision land. 6
(2) A development plan is to contain the following matters: 7
(a) a proposed plan of subdivision for the land, 8
(b) details of subdivision works to be undertaken for the land, 9
(c) details of the costs of the subdivision works and of the 10
proposed means of funding those works, 11
(d) details of the proportion of those costs to be borne by the 12
owners of the land and of the manner in which the owners 13
may meet those costs (including details of any proposed 14
voluntary land trading scheme or voluntary contributions 15
or, if voluntary measures are not agreed to by owners, of 16
compulsory land acquisition or compulsory contributions), 17
(e) rules as to the form of compensation for land that is 18
compulsorily acquired and how entitlement to 19
compensation is to be calculated, 20
(f) rules as to the distribution of any surplus funds after the 21
completion of subdivision works for the land, 22
(g) any other matters prescribed by the regulations. 23
(3) Regulations may be made for or with respect to procedures for 24
the preparation, public notification, adoption, publication, 25
amendment and repeal of development plans. 26
(4) The validity of a development plan must not be questioned in any 27
legal proceedings except those commenced in the Court by any 28
person within 3 months of the date of its publication in the 29
Gazette. 30
7 Land acquisition powers 31
(1) A relevant authority may, for a planning purpose specified in a 32
subdivision order, acquire subdivision land by agreement or by 33
compulsory process in accordance with the Land Acquisition 34
(Just Terms Compensation) Act 1991. 35
(2) A relevant authority may not give a proposed acquisition notice 36
under the Land Acquisition (Just Terms Compensation) Act 1991 37
without the approval of the Minister. 38
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(3) The following provisions apply if compensation provided for that 1
acquisition is in accordance with the rules set out in a 2
development plan in force in relation to the land: 3
(a) sections 44 (2), 45 (3), 4951, 64, 66 (4) and 68 (2) of the 4
Land Acquisition (Just Terms Compensation) Act 1991 do 5
not apply in relation to compensation other than monetary 6
compensation, 7
(b) all or any provisions of Division 4 of Part 3 of that Act do 8
not apply, or apply with modifications, if the development 9
plan so provides. 10
(4) The rules set out in a development plan may provide that all or 11
any of the provisions of Division 4 of Part 3 of the Land 12
Acquisition (Just Terms Compensation) Act 1991 do not apply to 13
the determination of compensation under that plan, or apply with 14
such modifications as are set out in that plan. 15
(5) If the rules set out in a development plan make provision as 16
referred to in subclause (4), the Valuer-General must determine 17
compensation to be offered to a person under the Land 18
Acquisition (Just Terms Compensation) Act 1991 in respect of 19
land acquired under this clause in accordance with the rules set 20
out in any applicable development plan adopted by a relevant 21
authority for the land. 22
(6) For the purposes of this clause, a reference in the Land 23
Acquisition (Just Terms Compensation) Act 1991 to an amount of 24
compensation includes a reference to compensation other than 25
monetary compensation and a reference to payment of 26
compensation includes a reference to the provision of such 27
compensation. 28
(7) Subclauses (3)(6) have effect despite any provision of the Land 29
Acquisition (Just Terms Compensation) Act 1991. 30
8 Other powers to acquire and dispose of land 31
A relevant authority may sell, lease, exchange, mortgage or 32
otherwise deal with or dispose of subdivision land vested in the 33
authority, or an interest in that land, and may grant easements, 34
rights-of-way or covenants over that land. 35
9 Contribution powers 36
(1) A relevant authority may, by notice in writing, require an owner 37
of subdivision land to make a reasonable monetary contribution 38
for the provision, extension or augmentation of subdivision 39
works. 40
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(2) A requirement under this clause must be in accordance with the 1
development plan applicable to the subdivision land. 2
(3) The amount payable by the owner of subdivision land under this 3
clause is to be reduced by the amount or value of any voluntary 4
contribution (whether a monetary or other contribution) made by 5
the owner for the provision, extension or augmentation of 6
subdivision works in accordance with the development plan 7
applicable to the subdivision land or an agreement with the 8
relevant authority. 9
(4) Compliance with a requirement for a contribution under this 10
clause, or a voluntary contribution made in accordance with a 11
development plan, operates to satisfy any other requirement 12
imposed by a public authority under this or any other Act (in 13
relation to or in connection with the subdivision land) for the 14
dedication of land or the payment of money in respect of the 15
provision of the same subdivision works, to the extent of the 16
value of the land dedicated or the amount of money paid in 17
compliance with the requirement. 18
(5) The regulations may make provision for the determination of the 19
value for the purposes of this clause of the land dedicated or 20
traded to the authority in accordance with a development plan. 21
(6) A contribution required to be made under this clause may be in 22
addition to any other contribution required to be made under this 23
Act. 24
10 Use of monetary contributions and other amounts 25
(1) The following are to be paid by the authority to a fund or funds 26
approved by the Minister: 27
(a) a monetary contribution paid to a relevant authority by the 28
owner of subdivision land for subdivision works, 29
(b) any money paid by the relevant authority to meet 30
contribution amounts under the development plan in 31
respect of land acquired by the authority under this 32
Schedule, 33
(c) the proceeds of any disposal by the relevant authority of 34
land acquired under this Schedule. 35
(2) The following may be paid from any fund to which contributions 36
or amounts are paid under this clause: 37
(a) payments to persons or bodies with respect to the provision 38
of subdivision works, 39
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(b) payments in connection with the exercise of functions by 1
the relevant authority for the planning purpose specified in 2
the subdivision order, 3
(c) payments for the whole or part of compensation payable 4
under clause 7 and any payments required to be made 5
under the Land Acquisition (Just Terms Compensation) 6
Act 1991, 7
(d) payments for the distribution of any surplus funds after the 8
completion of subdivision works and any other payments 9
under this clause, 10
(e) any money required to meet the administrative expenses of 11
the relevant authority in relation to its functions under the 12
subdivision order. 13
11 Powers to carry out subdivision works 14
(1) The relevant authority may carry out, or arrange for the carrying 15
out of, subdivision works with respect to subdivision land. 16
(2) The relevant authority may enter into contracts and other 17
arrangements for the carrying out of subdivision works. 18
(3) A relevant authority may make a development application to 19
carry out development on subdivision land for the purposes of 20
subdivision works without the consent of the owner of the land. 21
(4) The consent authority may grant consent to any such 22
development application even if the owner of the land has failed 23
to consent to the application. 24
(5) In this clause, subdivision works includes the carrying out of any 25
research or investigation related to the provision or augmentation 26
of subdivision works. 27
12 Roads powers 28
(1) A road within subdivision land cannot be provided, opened, 29
dedicated, closed (within the meaning of Part 4 of the Roads Act 30
1993) or realigned by the Crown, a public authority or any person 31
except with the consent of the relevant authority. 32
(2) A private road, or part of a private road, within subdivision land 33
cannot be: 34
(a) provided, opened, closed or realigned, or 35
(b) regulated in its use, or 36
(c) used for a purpose other than a road, 37
except with the consent of the relevant authority. 38
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13 Ancillary powers 1
A relevant authority has, for the purpose of any other functions 2
conferred under this Schedule, the following functions: 3
(a) the authority may enter into agreements with the owners of 4
subdivision land for the purposes of a voluntary land 5
trading scheme or the provision of voluntary contributions 6
or for other purposes connected with the authority's 7
functions under the subdivision order, 8
(b) the authority may cause surveys to be made, and plans of 9
survey to be prepared, in relation to subdivision land or 10
proposed subdivision land (whether or not vested in the 11
authority), 12
(c) the authority may manage subdivision land vested in the 13
authority in accordance with the development plan, 14
(d) the authority may carry out research or investigation 15
relating to subdivision works or proposed subdivision 16
works, 17
(e) the authority may (subject to this Act) subdivide and 18
re-subdivide land, and consolidate subdivided or 19
re-subdivided land vested in the authority, 20
(f) with the consent of the owner or occupier of the land, a 21
person authorised in writing by the authority may enter 22
subdivision land or proposed subdivision land. 23
14 Power to investigate land for subdivision order proposals 24
An authority specified in clause 2 may, before a subdivision order 25
is made. 26
(a) cause surveys to be made, and plans of survey to be 27
prepared, in relation to proposed subdivision land 28
(whether or not vested in the authority), and 29
(b) carry out research or investigation relating to proposed 30
subdivision works. 31
15 Other powers of entry 32
(1) An authorised person may, without the consent of the owner or 33
occupier of subdivision land or proposed subdivision land and in 34
accordance with the regulations: 35
(a) enter that land for a planning purpose, or 36
(b) enter that land in connection with the carrying out of 37
subdivision works or research or investigation relating to 38
proposed subdivision works, or 39
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(c) enter that land in connection with the preparation of, or 1
research or investigation for the purposes of, a 2
development plan or proposed development plan. 3
(2) In this clause, authorised person means the following persons: 4
(a) a person authorised in writing by a relevant authority, 5
(b) a person authorised in writing by the Minister in 6
connection with the exercise of the powers of an authority 7
under clause 14. 8
16 Failure to pay contributions 9
A monetary contribution required to be paid by an owner of 10
subdivision land under clause 9 may be recovered by the relevant 11
authority in any court of competent jurisdiction as a debt due to 12
the relevant authority by the owner. 13
17 Voluntary contributions agreements to run with land 14
(1) A voluntary contributions agreement is a voluntary agreement 15
between a relevant authority and a person who owns subdivision 16
land under which the owner is required to pay a monetary 17
contribution to be used for or applied for subdivision works. 18
(2) A voluntary contributions agreement can be registered under this 19
clause if the following persons agree to its registration: 20
(a) if the agreement relates to land under the Real Property Act 21
1900--each person who has an estate or interest in the land 22
registered under that Act, 23
(b) if the agreement relates to land not under the Real Property 24
Act 1900--each person who is seised or possessed of an 25
estate or interest in the land. 26
(3) On lodgment by a relevant authority of an application for 27
registration in a form approved by the Registrar-General, the 28
Registrar-General is to register the voluntary contributions 29
agreement: 30
(a) by making an entry in the relevant folio of the Register 31
kept under the Real Property Act 1900 if the agreement 32
relates to land under that Act, or 33
(b) by