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New South Wales
Planning Appeals Legislation
Amendment Bill 2010
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendment of Environmental Planning and Assessment
Act 1979 No 203 3
Schedule 2 Amendment of Land and Environment Court Act 1979
No 204 12
Schedule 3 Amendment of other Acts 14
b2010-094-07.d15
New South Wales
Planning Appeals Legislation
Amendment Bill 2010
No , 2010
A Bill for
An Act to amend the Environmental Planning and Assessment Act 1979, the Land
and Environment Court Act 1979 and other legislation with respect to appeals and
reviews relating to development applications; and for other purposes.
Clause 1 Planning Appeals Legislation Amendment Bill 2010
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Planning Appeals Legislation Amendment Act 2010. 3
2 Commencement 4
This Act commences on a day or days to be appointed by proclamation. 5
Page 2
Planning Appeals Legislation Amendment Bill 2010
Amendment of Environmental Planning and Assessment Act 1979 No 203 Schedule 1
Schedule 1 Amendment of Environmental Planning 1
and Assessment Act 1979 No 203 2
[1] Section 4 Definitions 3
Insert "(or regional panel)" before "means" in the definition of joint regional 4
planning panel in section 4 (1). 5
[2] Sections 23A, 88 (1) and 117C and clause 1 of Schedule 4 6
Omit the definition of regional panel wherever occurring. 7
[3] Section 23N Obligations of councils to assist Commission and regional 8
panels 9
Omit ", a regional panel or a planning arbitrator" wherever occurring in 10
section 23N (1) and (2). 11
Insert instead "or a regional panel". 12
[4] Section 23N (1) (a) and (b) and (3) 13
Omit ", panel's or arbitrator's" wherever occurring. 14
Insert instead "or panel's". 15
[5] Section 23N (2) 16
Omit "or to a review by the arbitrator of a matter for which the council is the 17
consent authority". 18
[6] Section 23N (3) 19
Omit ", a planning arbitrator". 20
[7] Section 80A Imposition of conditions 21
Omit "Division 7A or" from the note to section 80A (10D). 22
Insert instead "this Division or Division". 23
[8] Section 82A Review of consent determination 24
Omit section 82A (2), (3), (5), (7)(9) and (11). Insert instead: 25
(2) A council must, on a request made in accordance with this 26
section, conduct a review. 27
Page 3
Planning Appeals Legislation Amendment Bill 2010
Schedule 1 Amendment of Environmental Planning and Assessment Act 1979 No 203
[9] Sections 82B82D 1
Insert after section 82A: 2
82B Review where development application not accepted 3
(1) Application of section 4
This section applies if a council as consent authority determines 5
that a development application is to be rejected and not 6
determined. 7
(2) Applications for council review 8
The applicant may request a council to review the decision to 9
reject and not determine the application. 10
(3) Council must review decision 11
A council must, on a request made in accordance with this 12
section, conduct a review. 13
(4) Persons who may conduct review 14
The review must be conducted: 15
(a) if the decision was made by the council--by the council, or 16
(b) if the decision was made by a delegate of the council--by 17
the council or another delegate of the council who is not 18
subordinate to the delegate who made the determination. 19
(5) Determination of council review 20
As a consequence of the review, the council may confirm its 21
decision or proceed to consider the development application. 22
82C Review procedures generally 23
(1) This section and section 82D apply to a review held under 24
section 82A, 82B or 96AB by a reviewing body. 25
(2) An application for a review must be made, the review must be 26
held and the review must be determined, within the relevant 27
periods (if any) prescribed by the regulations. 28
(3) The regulations may provide that a failure to determine an 29
application within a period prescribed by the regulations is taken 30
to be a decision refusing the application. 31
(4) The prescribed fee must be paid in connection with an application 32
for a review. 33
(5) Before determining an application for a review (other than a 34
review under section 82A), the reviewing body must notify the 35
Page 4
Planning Appeals Legislation Amendment Bill 2010
Amendment of Environmental Planning and Assessment Act 1979 No 203 Schedule 1
request for review (if required to do so by the regulations) and 1
must consider any submissions made concerning the application 2
for review within any period prescribed by the regulations. 3
(6) The reviewing body must, in accordance with the regulations, 4
give notice of the result of its determination of an application for 5
a review to the person who applied for the review. 6
(7) A decision on an application for a review may not be further 7
reviewed under the same section by the same reviewing body. 8
(8) The regulations may make further provision with respect to 9
review applications, the conduct of a review and the notification 10
of review decisions. 11
(9) In this Division: 12
reviewing body means the council or the delegate of the council 13
who conducts the review. 14
82D Effect of review decisions 15
(1) For the purposes of determining an application for a review, a 16
reviewing body has the same functions as the consent authority 17
had, in relation to the original application or determination. 18
(2) If the reviewing body determines under section 82B that a 19
council should proceed to consider a development application, 20
the development application that is the subject of the review is 21
taken to have been lodged on the day on which that determination 22
is made. 23
(3) If the reviewing body changes a determination (other than a 24
determination under section 82B), the changed determination 25
replaces the earlier determination as from the date of review and 26
the date of determination of the application is taken to be the date 27
of the decision on the review. 28
(4) If the reviewing body grants development consent, or varies the 29
conditions of a development consent or otherwise modifies a 30
development consent, the reviewing body must endorse on the 31
notice issued under section 82C (6) the date from which the 32
consent, or the consent as varied, operates. 33
(5) A decision by a reviewing body in determining an application for 34
a review is taken for all purposes to be the decision of the consent 35
authority. 36
(6) 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
Page 5
Planning Appeals Legislation Amendment Bill 2010
Schedule 1 Amendment of Environmental Planning and Assessment Act 1979 No 203
[10] Section 83 Date from which consent operates 1
Omit "section 82A (7)" from section 83 (1) (a). 2
Insert instead "section 82D (4)". 3
[11] Section 83 (2) 4
Omit "section 97". Insert instead "section 97 (1)". 5
[12] Section 83 (3) (a) and (b) 6
Omit the paragraphs. Insert instead: 7
(a) development consent is refused on a review under 8
section 82A or an appeal under section 97, or 9
(b) the effect of a decision on an appeal under section 98 is that 10
development consent is refused. 11
[13] Section 83 (6) 12
Omit the subsection. 13
[14] Section 96 Modification of consents--generally 14
Omit "(5), (6) and (7)" from section 96 (1). 15
Insert instead "(5) and (6), section 96AB and Division 8". 16
[15] Section 96 (6) 17
Omit section 96 (6) and (7). Insert instead: 18
(6) Deemed refusals 19
The regulations may make provision for or with respect to the 20
following: 21
(a) the period after which a consent authority, that has not 22
determined an application under this section, is taken to 23
have determined the application by refusing consent, 24
(b) the effect of any such deemed determination on the power 25
of a consent authority to determine any such application, 26
(c) the effect of a subsequent determination on the power of a 27
consent authority on any appeal sought under this Act. 28
Page 6
Planning Appeals Legislation Amendment Bill 2010
Amendment of Environmental Planning and Assessment Act 1979 No 203 Schedule 1
[16] Section 96AA Modification by consent authorities of consents granted 1
by 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 on the power of a 11
consent authority on any appeal sought under this Act. 12
[17] Section 96AB 13
Insert after section 96AA: 14
96AB Review where modification application refused or conditions 15
imposed 16
(1) Applications for review of modification decisions 17
An applicant for the modification of a development consent for 18
which a council is the consent authority may request the council 19
to review a determination by the council under section 96 or 20
96AA of the application. 21
(2) Council must review determination 22
A council must, on a request made in accordance with this 23
section, conduct a review. 24
(3) Persons who may conduct council review 25
The review must be carried out by: 26
(a) if the determination was made by the council--the council, 27
or 28
(b) if the determination was made by a delegate of the 29
council--by the council or another delegate of the council 30
who is not subordinate to the delegate who made the 31
determination. 32
(4) Determination of review 33
As a consequence of the review, the council may confirm or 34
change the determination. 35
Page 7
Planning Appeals Legislation Amendment Bill 2010
Schedule 1 Amendment of Environmental Planning and Assessment Act 1979 No 203
(5) No review if appeal period expired or appeal made 1
A determination cannot be reviewed: 2
(a) after the time limited for the making of an appeal under 3
section 97AA expires, if no such appeal is made against 4
the determination, or 5
(b) after an appeal under section 97AA against the 6
determination is disposed of by the Court, if such an appeal 7
is made against the determination. 8
(6) Withdrawal of appeals 9
If on a review the council modifies a development consent, the 10
council is entitled, with the consent of the applicant and without 11
prejudice to costs, to have an appeal made under section 97 in 12
respect of its determination withdrawn at any time prior to the 13
determination of that appeal. 14
(7) Determinations not subject to review 15
This section does not apply to the following determinations: 16
(a) a determination of an application to modify a complying 17
development certificate, 18
(b) a determination in respect of designated development, 19
(c) a determination in respect of integrated development, 20
(d) a determination made by the council under section 89A in 21
respect of an application by the Crown, 22
(e) a determination that is taken to have been made because 23
the council has failed to determine an application. 24
Note. Sections 82C and 82D apply to a review under this section. 25
[18] Section 97 Appeal by an applicant--development applications 26
Omit "12 months" wherever occurring in section 97 (1)(3). 27
Insert instead "6 months". 28
[19] Section 97 (1) (a) 29
Insert "or review" after "application". 30
[20] Section 97 (4) and (5) 31
Omit the subsections. 32
Page 8
Planning Appeals Legislation Amendment Bill 2010
Amendment of Environmental Planning and Assessment Act 1979 No 203 Schedule 1
[21] Sections 97AA and 97A 1
Insert after section 97: 2
97AA Appeal by applicant--modifications 3
An applicant who is dissatisfied with the determination of a 4
consent authority with respect to the applicant's application 5
under section 96 or 96AA (including a determination on a review 6
under section 96AB) may appeal to the Court within 6 months 7
after: 8
(a) the date on which the applicant received notice, given in 9
accordance with the regulations, of the determination of 10
that application or, if an application for review under 11
section 96AB has been decided, the date on which the 12
applicant received notice, in accordance with the 13
regulations, of the decision, or 14
(b) the date on which the applicant's application is taken to 15
have been determined in accordance with regulations 16
made under section 82C (3), 96 (6) or 96AA (3). 17
97A Notice of appeals to be given and right to be heard 18
(1) The consent authority must give notice of an appeal under 19
section 97, 97AA or 98: 20
(a) to an objector, in the case of an appeal concerning a 21
development application in respect of which the objector 22
may appeal under section 98, or 23
(b) to the relevant Minister or public authority, in the case of 24
an appeal concerning a development application in relation 25
to which the concurrence of a Minister or public authority 26
is required under this Act, or 27
(c) to the relevant approval body (within the meaning of 28
Division 5), in the case of a development application to 29
carry out integrated development that involves the 30
approval body. 31
(2) A council must give notice to a regional panel of any appeal 32
under section 97, 97AA or 98 in respect of a determination made 33
by the panel or that may be reviewed by the panel under this Act. 34
(3) A council must give notice to the Planning Assessment 35
Commission of any appeal under section 97, 97AA or 98 in 36
respect of a determination made by the Commission or that may 37
be reviewed by the Commission under this Act. 38
Page 9
Planning Appeals Legislation Amendment Bill 2010
Schedule 1 Amendment of Environmental Planning and Assessment Act 1979 No 203
(4) A person or body who is given notice of an appeal under this 1
section is, on application made to the Court in accordance with 2
rules of court within 28 days after the date of the notice, entitled 3
to be heard at the hearing of the appeal as if the person or body 4
were a party to the appeal. 5
[22] Section 97B Costs payable if amended development application filed 6
Omit section 97B (2). Insert instead: 7
(2) In any proceedings to which this section applies, the Court must 8
make an order for the payment by the applicant of those costs of 9
the consent authority that are thrown away as a result of 10
amending the development application. 11
[23] Section 98 Appeal by an objector 12
Omit section 98 (3). 13
[24] Section 109Q Regulations under Part 4A 14
Insert after section 109Q (1) (e): 15
(f) exempting classes of temporary structures from 16
requirements relating to construction certificates or 17
occupation certificates. 18
[25] Section 118 Appointment of planning administrator, planning 19
assessment panel or regional panel 20
Omit ", a joint regional planning panel or a planning arbitrator" from 21
paragraph (d) of the definition of failure to comply with obligations under the 22
planning legislation in section 118 (12). 23
Insert instead "or a regional panel". 24
[26] Section 158 Exclusion of personal liability 25
Omit section 158 (e). 26
[27] Section 158 (f) 27
Omit "(a)(e)". Insert instead "(a)(d1)". 28
[28] Section 158 29
Omit ", a planning arbitrator". 30
[29] Schedule 6 Savings, transitional and other provisions 31
Insert at the end of clause 1 (1): 32
Planning Appeals Legislation Amendment Act 2010 33
Page 10
Planning Appeals Legislation Amendment Bill 2010
Amendment of Environmental Planning and Assessment Act 1979 No 203 Schedule 1
[30] Schedule 6 1
Insert at the end of the Schedule with appropriate Part and clause numbering: 2
Part Planning Appeals Legislation Amendment 3
Act 2010 4
Review and appeal changes 5
The amendments made to Part 4 of the Act by the Planning 6
Appeals Legislation Amendment Act 2010 do not apply to or in 7
respect of a development application lodged with a consent 8
authority before the commencement of section 82B (as inserted 9
by that amending Act). 10
Page 11
Planning Appeals Legislation Amendment Bill 2010
Schedule 2 Amendment of Land and Environment Court Act 1979 No 204
Schedule 2 Amendment of Land and Environment 1
Court Act 1979 No 204 2
[1] Section 34AA 3
Insert after section 34: 4
34AA Mandatory conciliation and arbitration 5
(1) This section applies to the following proceedings pending in 6
Class 1 of the Court's jurisdiction relating to appeals, objections 7
and applications under section 97 or 97AA of the Environmental 8
Planning and Assessment Act 1979: 9
(a) proceedings concerning development applications, or 10
modifications to development consents, for: 11
(i) development for the purposes of detached single 12
dwellings and dual occupancies (including 13
subdivisions), or alterations or additions to such 14
dwellings or dual occupancies, or 15
(ii) development of a kind prescribed by the regulations, 16
(b) particular proceedings that the Court orders, on the 17
application of a party to the proceedings or of its own 18
motion, to be dealt with under this section. 19
(2) Section 34 applies to the proceedings with the following 20
modifications: 21
(a) the Court must arrange a conciliation conference between 22
the parties and their representatives with or without their 23
consent, 24
Note. The Commissioner has the discretion to determine the 25
place (including an on-site hearing) fixed for the conciliation 26
conference. 27
(b) if no agreement of a kind referred to in section 34 (3) is 28
reached, the Commissioner who presides over the 29
conciliation conference must terminate the conciliation 30
conference and, subject to this section, dispose of the 31
proceedings: 32
(i) following a hearing held forthwith, or 33
(ii) if the parties consent, on the basis of what has 34
occurred at the conciliation conference. 35
(3) The Court or the Commissioner may at any time, if the Court or 36
Commissioner thinks it appropriate in the circumstances of the 37
case, determine that proceedings are not to be dealt with or are 38
Page 12
Planning Appeals Legislation Amendment Bill 2010
Amendment of Land and Environment Court Act 1979 No 204 Schedule 2
not to continue to be dealt with under subsection (2). A 1
determination may be made on the motion of the Court or 2
Commissioner or on application by the parties. 3
(4) If the Court or Commissioner determines that proceedings are not 4
to be dealt with or are not to continue to be dealt with under 5
subsection (2), the proceedings are to be dealt with under 6
section 34C. 7
[2] Section 34A Proceedings to which on-site hearing procedures apply 8
Insert after section 34A (1): 9
(1A) This section does not apply to proceedings to which 10
section 34AA applies. 11
[3] Schedule 3 Savings, transitional and other provisions 12
Insert at the end of clause 1A (1): 13
Planning Appeals Legislation Amendment Act 2010 14
[4] Schedule 3, clause 10 15
Insert after clause 9: 16
10 Provisions consequent on enactment of Planning Appeals 17
Legislation Amendment Act 2010 18
Section 34AA as inserted by, and the amendment to section 34A 19
made by, the Planning Appeals Legislation Amendment Act 2010 20
do not apply to proceedings commenced in the Court (but not 21
determined) before the commencement of section 34AA. 22
Page 13
Planning Appeals Legislation Amendment Bill 2010
Schedule 3 Amendment of other Acts
Schedule 3 Amendment of other Acts 1
3.1 Environmental Planning and Assessment Amendment Act 2
2008 No 36 3
[1] Schedule 2.1 Principal amendments to Environmental Planning and 4
Assessment Act 1979 5
Omit items [3], [13], [20], [27] and [32][35]. 6
[2] Schedule 2.1, items [18], [19] and [38] 7
Omit "section 96E" wherever occurring. Insert instead "section 82BA". 8
[3] Schedule 2.1, item [36] 9
Omit "Part 4, Division 7A". Insert instead "Section 82BA". 10
[4] Schedule 2.1, item [36] 11
Omit "Insert after Division 7 of Part 4". 12
Insert instead "Insert after section 82B". 13
[5] Schedule 2.1, item [36] 14
Omit all matter relating to proposed Division 7A of Part 4 (including the 15
heading to the proposed Division), other than proposed section 96E. 16
[6] Schedule 2.1, item [36] 17
Renumber proposed section 96E as section 82BA. 18
[7] Schedule 2.1, item [36] 19
Omit "planning arbitrator matters or to" from proposed section 82BA (10) (as 20
renumbered by item [6]). 21
[8] Schedule 2.1, item [36] 22
Insert at the end of proposed section 82BA (as renumbered by item [6]): 23
(11) As a consequence of a review, the reviewing body may confirm 24
or change the determination. 25
(12) If an application for a review is made under section 82A and this 26
section, the applications are to be dealt with together and 27
determined by the reviewing body. A council may not determine 28
an application for a review if an application concerning the same 29
matter is made under this section. 30
Page 14
Planning Appeals Legislation Amendment Bill 2010
Amendment of other Acts Schedule 3
(13) The regulations may make provision with respect to the 1
notification of applications made under this section. 2
(14) In this section: 3
applicable regional panel means the regional panel for the part 4
of the State in which the development is proposed to be carried 5
out. 6
[9] Schedule 2.1, items [37][37C] 7
Omit item [37]. Insert instead: 8
[37] Section 82C Review procedures generally 9
Omit "or 96AB" from section 82C (1). 10
Insert instead ", 82BA or 96AB". 11
[37A] Section 82C (6) 12
Omit the subsection. Insert instead: 13
(6) The reviewing body must, in accordance with the 14
regulations, give notice of the result of its 15
determination of an application for a review: 16
(a) to the person who applied for the review, and 17
(b) if that person was not the applicant for the 18
determination reviewed, to the applicant and 19
the council. 20
[37B] Section 82C (9) 21
Omit the definition of reviewing body. Insert instead: 22
reviewing body means: 23
(a) the council or a delegate of the council who 24
conducts the review, or 25
(b) in the case of an application to a regional 26
panel under section 82BA, the regional panel, 27
or 28
(c) in the case of an application to the Planning 29
Assessment Commission under 30
section 82BA, the Commission. 31
[37C] Section 97A Notice of appeals to be given and right to be heard 32
Insert "or make an application for a review under section 82BA" 33
after "section 98" in section 97A (1) (a). 34
Page 15
Planning Appeals Legislation Amendment Bill 2010
Schedule 3 Amendment of other Acts
[10] Schedule 2.2 Consequential amendments to Environmental Planning 1
and Assessment Act 1979 2
Omit items [16], [20][25], [31], [32] and [34][38]. 3
[11] Schedule 2.2, items [17], [18], [43] and [44] 4
Omit "section 96E" wherever occurring. Insert instead "section 82BA". 5
[12] Schedule 2.2, items [18] and [28] 6
Omit "Division 7A" wherever occurring. Insert instead "section 82BA". 7
[13] Schedule 2.2, item [30] 8
Omit the item. Insert instead: 9
[30] Section 83 (3) (b) 10
Insert "a review application under section 82BA or" after "a 11
decision on". 12
[14] Schedule 2.2, item [42] 13
Omit "section 96D". Insert instead "section 82BA". 14
[15] Schedule 2.5 and 2.10 15
Omit the Subschedules. 16
[16] Schedule 3.1 [7], proposed clause 2 (1) and (2) 17
Omit "section 96E" wherever occurring. Insert instead "section 82BA". 18
[17] Schedule 3.1 [7], proposed clause 16 19
Omit "Division 7A". Insert instead "Division 2". 20
Page 16
Planning Appeals Legislation Amendment Bill 2010
Amendment of other Acts Schedule 3
3.2 Independent Commission Against Corruption Act 1988 1
No 35 2
Section 74C Reports relating to local government and planning 3
authorities 4
Omit "or a planning arbitrator because of corrupt conduct by the member or 5
planning arbitrator" from section 74C (3C). 6
Insert instead "because of corrupt conduct by the member". 7
Page 17
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