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Assessment Amendment Bill 1997
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
(a)
to introduce new planning controls into the Environmental Planning
and Assessment Act 1979, including categories of exempt
development, complying development, advertised development and
development that is of State or regional significance, and
(b)
to integrate a number of approvals under other Acts (that are related to
the environmental impacts of a proposed development) with the
granting of development consent under the Environmental Planning
and Assessment Act 1979, and
(c)
to transfer control of subdivision (currently controlled under the Local
Government Act 1919 and Ordinance No 32 under that Act) and
building approvals (currently controlled under the Local Government
Act 1993) to the development control regime under the Environmental
Planning and Assessment Act 1979, and
to clarify and consolidate existing planning controls for the processing
and consideration of development applications, including procedures
for public participation, heads of consideration, staging of
development and modification of development consents, and
to establish a regime for the certification of development during its
various phases, and
to provide for the authorisation of professional associations as
accreditation bodies, and the accreditation by them of accredited
certifiers to exercise the functions of certifying authorities under the
regime referred to in paragraph (e), and
to provide for proportional liability, together with a maximum
limitation period of 10 years, for actions relating to building work and
subdivision, and to require accredited certifiers and certain building
practitioners to hold appropriate insurance with respect to their
activities, and
to enhance the enforcement provisions of the Environmental Planning
and Assessment Act 1979 and, in particular, to enable the issuing of
orders, and
to make consequential amendments to various Acts, and
to make savings provisions and provision for transitional
arrangements.
Clause 2 provides that the proposed Act will commence on a day or days to
be proclaimed.
Clause 3 is a formal provision that gives effect to the Schedule of
amendments to the Environmental Planning and Assessment Act 1979.
Clause 4 is a formal provision that gives effect to the Schedule of
amendments to the Conveyancing Act 1919.
Clause 5 is a formal provision that gives effect to the Schedule of
amendments to the Local Government Act 1993.
Clause 6 is a formal provision that gives effect to the Schedule of
amendments to other Acts.
Explanatory note page 2
Clause 7 repeals the unrepealed portion of the Local Government Act 1919
and Ordinance No 32 under that Act.
Schedule 1 contains the amendments to the Environmental Planning and
Assessment Act 1979.
Schedule 2 contains the amendments to the Conveyancing Act 1919.
Schedule 3 contains the amendments to the Local Government Act 1993.
Schedule 4 contains consequential amendments to other Acts.
Schedule 1
Amendment of Environmental Planning and
Assessment Act 1979
1
Preliminary matters
Schedule 1 [1][8] deal with a number of definitions for the purposes of the
Environmental Planning and Assessment Act 1979. In particular, the
definition of development is extended to include the demolition of a building
or work and other things that may be controlled by an environmental
planning instrument as referred to in section 26 of that Act. The concepts
within the definition of development are further extended by the amendments
made to section 4 (2).
Schedule 1 [9] inserts proposed section 4B which contains a definition of
subdivision of land.
Schedule 1 [10] provides that it is to be an object of the Act to encourage
ecologically sustainable development.
Schedule 1 [12] relocates existing section 76A as it is a provision of general
application and is not limited to the determination of development
applications.
Schedule l [17] enables the identification in an environmental planning
instrument of advertised development. Advertised development is
development (other than designated development) that is identified as
advertised development by the regulations, an environmental planning
instrument or a development control plan. It is required to be publicly
notified and submissions may be made in respect of it.
Schedule 1 [21] extends the matters that may be dealt with in development
control plans.
Schedule 1 [11], [13][16], [18] and [22][31] make consequential
amendments.
Explanatory note page 3
2
Substitution of Part 4 of, and addition of Parts
4A, 4 B and 4C to, the Environmental Planning
and Assessment Act 1979
Schedule 1 [32] repeals and re-enacts, partly for the sake of convenience, the
whole of Part 4 of the Environmental Planning and Assessment Act 1979. In
doing so, no substantive change is made to a number of existing provisions
including the provisions concerning section 94 contributions, existing uses
and rights of appeal. The following is a summary of the provisions of
Parts 44C.
Part 4
Development assessment
Division 1
Carrying out of development--the threefold
classification
Proposed Division I contains proposed sections 7676C. It continues the
existing arrangements under which environmental planning instruments may
classify development as:
(a)
development that does not need consent, or
(b)
development that needs consent, or
(c)
development that is prohibited.
A new type of development that does not need consent, exempt development
is created by the proposed Act. Exempt development is development that is
identified in an environmental planning instrument as development that is of
minimal environmental impact. It is not regulated by Part 4 and is not subject
to Part 5 of the Environmental Planning and Assessment Act 1979. It cannot
be carried out on land that is critical habitat or that is within a wilderness
area.
Development that needs consent comprises 2 types, namely:
(a)
local development (which includes complying development), and
(b)
State significant development.
Local development is development that needs consent and that is not State
significant development.
Complying development is local development that can be addressed by
specified predetermined development standards. It cannot be State significant
development, designated development or development that requires the
Explanatory note page 4
concurrence of a person (other than the consent authority or, in certain
circumstances, the Director-General of National Parks and Wildlife). It
cannot be carried out on land that is critical habitat, that is within a
wilderness area or that comprises, or on which there is, an item of the
environmental heritage.
State significant development is development:
(a)
that is so declared by a State environmental planning policy or regional
environmental plan, or
(b)
that is of State or regional environmental planning significance and
that is declared by the Minister, by notice in the Gazette, to be State
significant development, or
(c)
that is the subject of a development application that the Minister has
directed be referred to the Minister for determination, or
(d)
that is prohibited development that the Minister has directed be
referred to the Minister for determination.
In outline, the proposed classification of development under the substituted
Part may be summarised as follows:
Division 2
The procedures for development that needs
consent
Proposed Division 2 contains proposed sections 7783. The proposed
Division does not apply to complying development (which is the subject of
proposed Division 3). The provisions of this Division are supplemented and
modified by Division 4 in the case of State significant development and
Division 5 in the case of integrated development.
Explanatory note page 5
The Division defines designated development (without changing the existing
concept).
The Division enables:
(a)
a single development application to be made for one or more of the
different types of development, and
(b)
a development application (made where a council is the consent
authority) to seek, in addition to development consent, approval for
certain activities for which approval would otherwise be required
under section 68 of the Local Government Act 1993.
The Division provides for:
*
the notification, advertising and public exhibition of development
applications
*
the making and consideration of submissions concerning development
applications, including submissions by way of objection
*
the circumstances in which other authorities are to be consulted or their
concurrence obtained in connection with the carrying out of proposed
development
*
the evaluation of development applications
*
the determination of development applications
*
the imposition of conditions
*
the notification of determinations
*
the review of determinations
· the requirements to be observed before work can be commenced.
Division 3
Special procedure for complying development
Proposed Division 3 contains proposed sections 8487. It enables a person
who has been issued with a complying development certificate to carry out
development in accordance with the certificate and the provisions of the
various regulatory instruments that apply to that development.
The Division provides for:
·
the terms and authority of complying development certificates
·
the process for obtaining a complying development certificate
·
the modification of complying development
·
the duration of complying development certificates
·
the requirements to be observed before work can be commenced.
Explanatory note page 6
Division 4
Additional procedures concerning State significant
development
Proposed Division 4 contains proposed sections 8889A. It enables the
Minister to direct a council to refer a particular development application to
the Minister for determination if it addresses matters of significance for State
or regional environmental planning. Such a direction may be given even if
the development would otherwise be prohibited by an environmental
planning instrument.
Division 5
Special procedure for integrated development
Proposed Division 5 contains proposed sections 9093B. It identifies the
scope of integrated development by listing the approvals (which include
consents, licences, permits, permissions and other forms of authorisation) that
may be required in addition to development consent in order for a particular
form of development to be carried out. Different processes apply according to
whether the proposed development is local development or State significant
development.
For local development, the consent authority, if it proposes to grant
development consent, must obtain from each approval body the general terms
of any approval proposed to be granted by it. A consent granted by the
consent authority must be consistent with those general terms. If the approval
body will not grant the approval, the consent authority must refuse consent. If
the approval body fails to respond, the consent authority may grant consent
and the approval body cannot subsequently refuse its approval.
For State significant development, the Minister, if the Minister proposes to
grant development consent, must obtain from each approval body the general
terms of any approval proposed to be granted by it. Any dispute between the
Minister and an approval body that cannot be resolved between them as to
the terms of an approval may be referred to the Premier for settlement. If the
approval body fails to provide its general terms, the Minister may grant
consent and the approval body cannot subsequently refuse its approval.
If development consent is granted to integrated development following the
provision to a consent authority (including the Minister) by the approval
body of the general terms of its approval, the approval body must grant
approval to any application for its approval that is made within 3 years after
the date on which the development consent is granted. The approval must not
be inconsistent with the development consent.
Explanatory note page 7
Division 6
Conditions requiring contributions towards public
amenities and services
Proposed Division 6 contains proposed sections 9494E. The Division
re-enacts, without substantive change, the existing provisions of sections
9494A of the Principal Act.
Division 7
Post-consent provisions
Proposed Division 7 contains proposed sections 9596A. It deals with the
circumstances in which a development consent lapses, the extension of
consents, and the modification and revocation of consents.
Division 8
Appeals and related matters
Proposed Division 8 contains proposed sections 9799. It provides for an
applicant's and objector's appeals, appeals against the imposition of
conditions of a development consent for the provision of security or the
failure or refusal of a consent authority to release a security held by it, and
the joint hearing of appeals.
Division 9
Miscellaneous
Proposed Division 9 contains proposed sections 100105. It provides for:
*
the keeping by councils of registers of development consents and
complying development certificates
*
the limiting of challenges to the validity of development consents and
complying development certificates
*
the identification of mandatory procedural requirements concerning
State significant development
*
the revocation or regranting of a development consent following the
making of an order of suspension by the Land and Environment Court
*
the making of regulations for the purposes of Part 4.
Division 10
Existing uses
Proposed Division 10 contains proposed sections 106109B. The Division
re-enacts, without substantive change, the existing provisions of sections
106109B of the Principal Act.
Explanatory note page 8
Part 4A Certification of development
Proposed Part 4A contains proposed sections 109C109Q. It deals with the
following matters:
(a)
the identification of 4 kinds of Certificates that may be issued under the
proposed Part (Part 4A certificates), namely compliance certificates,
construction certificates, occupation certificates and subdivision
certificates,
(b)
the identification of the persons and bodies by which Part 4A
certificates may be issued, namely consent authorities and accredited
certifiers (for all certificates) and, for subdivision certificates only,
local councils and Crown and related bodies,
(c)
the appointment of a principal certifying authority for all development
involving building work or subdivision work,
(d)
the restrictions that apply to the issue of the various kinds of Part 4A
certificates,
(e) the rights of appeal that exist with respect to a consent authority's
refusal to issue a construction certificate, occupation certificate or
subdivision certificate,
(f)
other matters ancillary to the proposed certification regime.
A compliance certificate is a certificate to the effect that:
(a) specified building work or subdivision work has been completed as
specified in the certificate and complies with specified plans and
specifications, or
(b) a condition with respect to specified building work or subdivision
work has been duly complied with, or
(c) specified requirements of the regulations have been complied with.
A compliance certificate given with respect to an early phase of development
will be able to be relied on by a certifying authority for the purpose of issuing
some other Part 4A certificate with respect to a later phase of that
development. In certain circumstances it will also signal the start of the
10-year limitation period for actions with respect to subdivision work to be
established by proposed Part 4C.
A construction certificate is endorsed on building plans and specifications to
certify that work carried out in accordance with those plans and
specifications will comply with certain requirements prescribed by the
regulations. Without a construction certificate it will not be lawful to
commence any building work or subdivision work.
Explanatory note page 9
An occupation certificate is a certificate that authorises the occupation and
use of a new building or a change of building use for an existing building.
Proposed sections 109M and 109N will prohibit the occupation or use of a
new building, and the change of use for an existing building, unless an
occupation certificate has been issued for the building. In the case of a new
building, such a certificate will be able to be issued only by the principal
certifying authority appointed for the erection of the building. The issue of an
occupation certificate will signal the start of the 10-year limitation period for
actions with respect to building work to be established by proposed Part 4C.
A subdivision certificate is a certificate that authorises the Registrar-General
to register a plan of subdivision under the Conveyancing Act 1919. Section
195C of that Act, as proposed to be amended, will prohibit registration of
such a plan unless a subdivision certificate has been endorsed on it. In the
case of a subdivision involving subdivision work, such a certificate will be
able to be issued only by the principal certifying authority appointed for the
carrying out of the subdivision. The issue of a subdivision certificate will
signal the start of the 10-year limitation period for actions with respect to
subdivision work to be established by proposed Part 4C.
Part 4 B Accreditation of certifiers
Proposed Part 4B contains proposed sections 109R109ZH. It deals with the
following matters:
(a)
the authorisation of professional associations as accreditation bodies
for the purposes of the Principal Act,
(b)
the accreditation of persons as accredited certifiers to exercise the
functions of certifying authorities under Part 4A,
(c)
the auditing of the work and activities of accredited certifiers by the
Director-General of the Department of Local Government,
(d)
the conduct of disciplinary proceedings against accredited certifiers.
Professional associations in the various fields relating to building and
subdivision will be accredited under the proposed Part. These associations
will have the function of accrediting private persons as, and supervising the
activities of, accredited certifiers. Complaints about accredited certifiers will
be investigated by the relevant accreditation body and, if found to have
substance, will be referred to the Administrative Decisions Tribunal for
determination. The Tribunal will be able to make various kinds of order with
respect to an accredited certifier it finds guilty of unsatisfactory professional
conduct or professional misconduct. These will range from cautions and
Explanatory note page 10
reprimands through to suspension or withdrawal of accreditation, and will
include a power to order a civil penalty not exceeding 100 penalty units
($11,000) and payment of compensation up to $20,000.
Part 4C Liability and insurance
Part 4C contains proposed sections 109ZI109ZP. It deals with the following
matters:
(a)
the apportionment of liability between the various parties in an action
relating to defective building work or subdivision work responsible for
the damage giving rise to an award of damages made by a court,
(b)
the imposition of a limitation period of 10 years for any person's
liability for damage arising as a result of defective building work or
subdivision work,
(c)
the requirement that accredited certifiers and certain building
practitioners are covered by insurance with respect to their activities as
accredited certifiers and building practitioners.
Apportionment of liability involves a court, in making an award for damages
for damage arising from defective building work or subdivision work,
determining the proportion of the damage for which each defendant to the
action is liable. A defendant will not be required to pay any more than the
proportion so determined, regardless of the failure of any other defendant to
pay the proportion determined in respect of that other defendant. This differs
from the general rule of law concerning liability in which all such defendants
would be jointly and severally liable for the full amount of the damages
awarded, under which each defendant underwrites the liability of each other
defendant.
The imposition of a limitation period of 10 years for any person's liability for
damage arising from defective building work or subdivision work is designed
to address the law concerning latent defects in which the current limitation
period begins to run only when the defect becomes apparent. The approach
taken in the proposed provisions is to limit the period within which
proceedings can be commenced to the period of 10 years running from the
date on which the relevant occupation certificate or subdivision certificate is
issued or, in the case of subdivision work that is carried out after a
subdivision certificate is issued, from the date on which a compliance
certificate is issued with respect to the completion of that work. The new rule
will not extend any period of limitation under the Limitation Act 1969, so that
the period during which proceedings may be brought may, under that Act, be
shorter than the 10 years proposed.
Explanatory note page 11
It will be an offence for accredited certifiers and certain building practitioners
to practise as such unless they are insured. Failure to be appropriately insured
will also be a ground for withdrawal of accreditation, in the case of an
accredited certifier. The nature and extent of the insurance cover required will
be established by the regulations.
Schedule 1 [33] substitutes the definition of activity in section 110 (1) of the
Principal Act to reflect the changes made to Part 4.
3
Addition of Part 5A to the Environmental Planning
and Assessment Act 1979--development by the
Crown
Schedule 1 [34] inserts proposed Part 5A containing proposed sections
115G115N. It largely preserves the existing arrangements under the Local
Government Act 1993 concerning the carrying out of Crown building work.
4
Enforcement powers
Schedule 1 [36] inserts proposed Division 1 A, containing proposed sections
118A118N, into Part 4. The proposed Division largely duplicates powers of
entry and inspection that are currently found in the Local Government Act
1993.
Schedule 1 [37] inserts proposed Division 2A, containing proposed sections
121A121ZP, into Part 6. The proposed Division largely transfers to the
Principal Act from the Local Government Act 1993 the powers to make and
enforce orders to regulate matters relating to building.
Schedule l [38][42] also make amendments relating to the enforcement of
the provisions of the Principal Act.
5
Building certificates
Schedule l [52] inserts proposed sections 149A149G into Part 8
(Miscellaneous) of the Principal Act. The proposed sections transfer to the
Principal Act from the Local Government Act 1993 the provisions relating to
building certificates.
6
Miscellaneous matters
Schedule 1 [43][51] and [53][56] make miscellaneous amendments and
amendments enabling the making of savings and transitional provisions.
Explanatory note page 12
Schedule 2 Amendment of Conveyancing Act 1919
Subdivision of land
In addition to transferring the control of the developmental aspects of
subdivision wholly into the Environmental Planning and Assessment Act
1979, a further object of this Bill is to reform the provisions concerning both
the approval mechanisms for proposed subdivisions and the registration of
plans of subdivision. The essential differences between the proposed
legislation and the existing law are:
(a)
the abolition of the subdivision approval mechanism under Part 12 of
the Local Government Act 1919, leaving the development consent
mechanism under Part 4 of the Environmental Planning and
Assessment Act 1979 (which already applies to subdivision) as a single
approval mechanism for subdivision, and
(b)
the introduction of a system of private accreditation in relation to the
certification of plans of subdivision.
This Bill in relation to the subdivision of land:
(a) amends the Environmental Planning and Assessment Act 1979 so as:
(i)
to make provision with respect to planning aspects of the
subdivision of land, and
(ii) to make provision for the exercise, by persons in the private
sector who are appropriately accredited, of certain supervisory
functions in relation to matters associated with the subdivision
of land, and
(b)
amends the Conveyancing Act 1919 so as to make provision with
respect to:
(i)
transactions involving the subdivision of land, and
(ii)
the registration of plans of subdivision, and
(c)
makes consequential amendments to other Acts:
(i)
generally as a result of the proposed repeal of the remaining
provisions of the Local Government Act 1919, and
(ii)
particularly as a result of the proposed amendments to the
Environmental Planning and Assessment Act 1979 and the
Conveyancing Act 1919 in relation to subdivision, and
(d) repeals the Local Government Act 1919 and Ordinance No 32 under
that Act.
The amendments to the Conveyancing Act 1919 to give effect to this object
of the Bill are contained in Schedule 2.
Explanatory note page 13
Schedule 3
Amendment of Local Government Act 1993
Schedule 3 contains consequential amendments to the Local Government Act
1993.
Schedule 4
Amendment of other Acts
Schedule 4 contains consequential amendments to other Acts.
Explanatory note page 14