Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment (Savings and Transitional) Amendment Regulation 1998 (1998-671) [GG No 171 of 11.12.1998, p 9481] (NSW)

1998 No 671

New South Wales

Environmental Planning and

Assessment (Savings and
Transitional) Amendment Regulation

1998

under the

Environmental Planning and Assessment Act 1979

His Excellency the Governor, with the advice of the Executive Council, has made the following Regulation under the Environmental Planning and Assessment Act 1979.

CRAIG KNOWLES MP

Minister for Urban Affairs and Planning

xplanatory note

The object of this Regulation is to amend the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998 so as to make further provisions of a savings or transitional nature consequent on the enactment of the Environmental Planning and Assessment Amendment Act 1997.

This Regulation is made under the Environmental Planning and Assessment Act 1979, including section 157 (the general regulation-making power) and clause 1 o f Schedule 6 (the power to make regulations of a savings or transitional nature).

Published in Gazette No 171 of 11 December 1998, page 9481 Page 1

1998 No 671

Clause 1 Environmental Planning and Assessment (Savings and Transitional) Amendment Regulation 1998

Environmental Planning and Assessment

(Savings and Transitional) mendment

egulation 1998

1 Name of Regulation

This Regulation is the Environmental Planning and Assessment

(Savings and Transitional) Amendment Regulation 1998.

2	Amendment of Environmental Planning and
(Savings, and Transitional) Regulation 1998

The Environmental Planning and Assessment (Savings and Transitional) Regulation 1998 is amended as set out in Schedule 1.

3 Notes

The explanatory note does not form part of this Regulation.

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Amendments	Schedule 1
Schedule 1	Amendments

(Clause 2)

[1]        Clause 3 Definitions

Insert in alphabetical order:

existing EPI means an environmental planning

instrument:

(a)	that was in existence immediately before the appointed day, or
(b)	that was the subject of a decision under section 54 of the unamended EP&A Act 1979 immediately before the appointed day and was made before 1 July 1999.

existing provision of an existing EPI means a provision

of the EPI:

as in force immediately before the appointed day,
or

as amended after the appointed day. but before 1

July 1999, by some other environmental planning

instrument that was the subject of a decision under section 54 of the unamended EP&A Act 1979 immediately before the appointed day. or

before 1 July 1999, by some other environmental as inserted in the EPI after the appointed day, but

planning instrument that was the subject of a

decision under section 54 of the unamended EP&A Act 1979 immediately before the appointed

day.

new EPI means an environmental planning instrument

that is not a n existing EPI.

new provision of an existing EPI means a provision of

the EPI that is not an existing provision.

[2]        Clause 3, paragraph (b) of the definition of "prescribed activity"

Insert “(but only in relation to the erection of an advertising structure over a public road)" after "item 2”.

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Schedule 1 Amendments

[3]        Clause 5 Certain applications for approvals may continue to be made

Insert "(other than subdivision that comprises development of the kind referred to in clause 29 (2) (g))" after "public road" in clause 5

(1).

Insert after clause 5:

5A Approvals required for certain subdivisions

(1)	This clause applies to development of the kind referred to in clause 29 (2) (g).
(2)	Development to which this clause applies must not be carried out without an approval under Part 12 of the repealed LG Act 1919.
(3)	This clause ceases to have effect on 1 July 2000.

[5]        Clause 6 Applications for approvals

Insert “or 5A” after “ 5 ” .

[6]       Clause 9A

Insert after clause 9:

9 A Conditions on subdivision arising from existing

development consents

(1)	This clause applies to subdivision authorised by:
(a) a development consent granted under the

unamended EP&A Act 1979 before the appointed
day. or

(b ) a development consent granted under the unamended EP&A Act 1979 on or after the appointed day in response to a development application made under that Act before the appointed day.

referred to in this clause as the original development

consent.

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Amendments Schedule 1

At any time before issuing a subdivision certificate under the amended EP&A Act 1979 for subdivision to which this clause applies, the consent authority by which the original development consent was granted may, by notice in writing given to the applicant for the certificate, impose such conditions on the development consent as it could have imposed on a subdivision approval under the unamended LG Act 1919.

Conditions imposed under subclause (2):

are not to deal with matters of a kind that, under the amended EP&A Act 1979 or the amended EP&A Regulation 1994, must be done before the subdivision certificate may be issued, and

are to be additional to, but not inconsistent with,

any other conditions to which the original

development consent is subject.

Conditions may not be imposed under this clause if conditions have been imposed under clause 49A in relation to the same subdivision.

The amended EP&A Act 1979 applies to the consent authority's determination to impose conditions on the original development consent under subclause (2) in the same way a s it applies to a consent authority's determination to impose conditions on a development consent under section 80A of that Act.

Nothing in this section authorises the making of an

appeal under section 97 of the amended EP&A Act 1979

in relation to any aspect of the development consent
other than the conditions imposed under this clause.

A subdivision certificate must not be issued under the amended EP&A Act 1979 in relation to subdivision to which this clause applies unless the certifying authority for the subdivision (which, by virtue of clause 30, will be a consent authority or council) is satisfied that all of the

conditions of the original development consent in relation to the subdivision (including those imposed under subclause (2)) have been duly complied with.

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(8)	Subclause (7) does not apply to any condition that, according to its terms or by necessary implication from its content, does not have to be complied before a subdivision certificate is issued.
(9)	This clause does not apply to or in respect of a subdivision the subject of a development consent that authorises or requires any work in the nature of subdivision work.

9B Construction of references to certain approvals

In any development consent granted under the unamended EP&A Act 1979 before, on or after the appointed day, a reference to:

(a)	an approval under Part 12 of the repealed LG Act 19 19 (in whatever terms expressed), or
(b)	a certificate under section 327 of the repealed LG Act 19 19 (in whatever terms expressed),

is taken to be a reference to a subdivision certificate
under the amended EP&A Act 1979.

[7]        Clause 17 State significant development

lnsert "being development the subject of a development application made on or after the appointed day but" before “not being" in clause

17 (1 ) .

[8]        Clause 17 (1A)

Insert after clause 17 (1):

(1A) Without limiting subclause ( 1), development, with respect to any coal mine the subject of a direction under section 101 of the unamended EP&A Act 1979 is State significant development.

[9]        Clause 17 (2)

Insert "or (1A)” after “subclause (1)”.

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Amendments Schedule 1

[10]      Clause 20 Development consents

Insert after clause 20 (2):

(3) A development consent arising under subclause (1) is taken to be subject to the conditions prescribed by Part 7 of the amended EP&A Regulation 1994 (the Part 7 conditions) as if the development consent had been granted under the amended EP&A Act 1979 and, if the Part 7 conditions are inconsistent with any other conditions of the development consent, the Part 7 conditions prevail to the extent of the inconsistency.

[11]     Clause 23 Revocation and modification of development consents

Insert at the end of clause 23:

For the purposes of applying the amended EP&A Regulation 1994 to the modification of a development

consent referred to in subclause (l), clause 72A of that Regulation is taken to apply to an application under section 96 (2) of the amended EP&A Act 1979 to modify a development consent if the original development application for the consent was notified or advertised:

(a)	under section 84 of the unamended EP&A Act 1979, or
(b)	under a provision of an environmental planning instrument referred to in section 30 (4) of the unamended EP&A Act 1979.

[12]      Clause 29 Certain activities require development consent under amended EP&A Act 1979

Omit clause 29 (2) (d), Insert instead:

(d)

any development:

(i)	carried out by the Crown. or
(ii)	carried out by any person prescribed by the amended EP&A Regulation 1994 for the purposes of section 115M of that Act (as referred to in section 115H (a) of that Act) in relation to Crown building work,

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being development that, immediately before the appointed day, constituted an activity within the meaning of Part 5 of the unamended EP&A Act 1979,

(d1) any development consisting of the demolition of a

building or work:

( i )        carried out by the Crown, or

( i i )       carried out by any person prescribed by the amended EP&A Regulation 1994 for the purposes of section 115M of that Act (as referred to in section 115H (a) of that Act) in relation to Crown building work,

(d2) any development consisting of subdivision:

( i )        carried out by the Crown. or

( i i )       carried out by any person prescribed by the amended EP&A Regulation 1994 for the purposes of section 115M of that Act (as referred to in section 115M (a) of that Act)

in relation to Crown building work,

(d3) any non-structural alterations to a building:

( i )        carried out by the Crown. or

( i i )       carried out by any person prescribed by the amended EP&A Regulation 1994 for the purposes of section 115M of that Act (as referred to in section 115H (a) of that Act)

in relation to Crown building work.

[13]     Clause 2 9 (2) (f)

Omit the paragraph.

[14]     Clause 29 (2) (g) (ii)

Omit "3 years".
Insert instead " 2 years".

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Clause 29 (7)

Omit the subclause. Insert instead:

(7) This clause has effect despite the existing provisions of any existing EPI, but is subject to the provisions of any new EPI and to any new provisions of an existing EPI.

(7A) Nothing in this clause requires development consent to be obtained for any development for which development consent is required to be obtained otherwise than by operation of this clause.

Clause 29 (10)

Omit the subclause.

Clause 29A

Insert after clause 29:

29A Effect of environmental planning instruments o n certain

prescribed activities

(1)

This clause applies to a prescribed activity that. immediately before the appointed day. did not constitute development within the meaning of the unamended EP&A Act 1979.

(2)

A prescribed activity to which this clause applies:

(a)	is not subject to the provisions of an environmental planning instrument merely by virtue of the fact that it is development within the meaning of the amended EP&A Act 1979, but
(b)	is subject to the provisions of an environmental planning instrument to the extent to which those provisions applied to that activity, immediately before the appointed day, pursuant to section 26 of the unamended EP&A Act 1979.

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(3)	This clause has effect despite the existing provisions of any existing EPI, but is subject to the provisions of any new EPI and to any new provisions of an existing EPI.
(4)	This clause ceases to have effect on 1 July 2000.

Insert "consent authority or" before "council".

[19]      Clause 3 0

Insert “, and is to be the certifying authority for a11 aspects of the development." after "for the development".

[20]      Clause 30

Insert at the end of the clause:

(2)

If, but for this clause, both a consent authority (not being

a council) and a council:

( a )	would be taken to have been appointed as t h e principal certifying authority for the development, and
(b)	would be the certifying authority for all aspects of the development.

the council only is taken to have been appointed as the principal certifying authority for the development and is to be the certifying authority for all aspects of the development.

[21]      Clause 32 Notification of development

Omit clause 32 (1) (c). Insert instead:

(c) of an existing EPI (being existing provisions),

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Amendments Schedule 1

Clause 32 (3)

Omit clause 32 (3). Insert instead:

(3)

Subclauses ( 1 ) and (2) do not apply to development the subject of an environmental planning instrument or development control plan containing provisions relating to the notification of proposed development if those provisions:

(a)	are expressly complementary to the new advertising provisions, or
(b)	expressly state that the new advertising provisions are to apply to the development.

Clause 32 (4)

Omit the subclause.

Clause 33 Maximum fees chargeable for certain matters arising under amended EP&A Act 1979

Omit "complying development certificate or a Part 4A certificate"
from clause 33 (3).

Insert instead "matter".

Clauses 35A and 35B

Insert after clause 35:

35A Continuation of certain regulations

To the extent to which any provision of the unamended EP&A Act 1979 continued by this Part depends on the provisions of the unamended EP&A Regulation 1994:

(a) the provisions of that Regulation are taken to continue in force for that purpose as if the Environmental Planning and Assessment Amendment Regulation 1998 and the Environmental Planning and Assessment Further Amendment Regulation 1998 had not been made, and

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(b) in particular, the Director’s requirements under clause 52 of the unamended EP&A Regulation 1994 continue to have effect.

35B Director’s requirements

Any Director’s requirements that, immediately before the appointed day, were in force under clause 52 of the unamended EP&A Regulation 1994 are taken to be Director’s requirements in force under clause 55 of the amended EP&A Regulation 1994, and may be amended and revoked accordingly.

Clause 36 Certain applications for approvals may continue to be made

Insert “(other than a prescribed activity that comprises development of the kind referred to in clause 29 (2) (g))” after “prescribed activity” in clause 36 ( 1 ) .

Clause 36A

Insert after clause 36:

36A Approvals required for certain prescribed activities

( 1 )	This clause applies to development of the kind referred to in clause 29 (2) (g).
(2)	Development to which this clause applies must not be carried out without an approval under Division 3 of Part
1 of the unamended LG Act 1993.
(3)	This clause ceases to have effect on 1 Ju ly 2000.

Clause 37 Applications for approvals

Insert ”or 36A” after " 3 6 " .

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Amendments Schedule 1

Clause 40

Insert after clause 40:

Continued operation of Part 2 of Chapter 7

(1)	An order may be made under section 124 of the unamended L G Act 1993 in relation to any building erected before the appointed day as if the EP&A Amendment Acts had not been enacted.
(2)	Part 2 of Chapter 7 of the unamended LG Act 1993 applies to and in respect of an order referred to in subclause (1) as if the EP&A Amendment Acts had not been enacted.
(3)	This clause ceases to have effect on 1 April 1999.

(Approvals) Regulation 1993 taken to be development

Clause 44 Repealed provisions of Local Government

standards

Insert "whether made before, on or after the appointed day" at the end of clause 44 (2).

Clauses 49A, 49B

Insert after clause 49:

49A Conditions on buildings and works arising from existing

development consents

( 1 )	This clause applies to a building or work (including work
in the nature of subdivision work) authorised or required
by :
(a) adevelopment consent granted under the

unamended EP&A Act 1979 before the appointed

day. or

(b) adevelopment consent granted under the

unamended EP&A Act 1979 on or after the appointed day in response to a development application made under that Act before the appointed day.

referred to in this clause as the original development

consent.

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(2)

After receiving an application for a construction certificate under the amended EP&A Act 1979 for a building or work to which this clause applies, the certifying authority for the development (which, by virtue of clause 30, will be a consent authority or council) may impose such conditions on the construction certificate:

(a)	as it could have imposed on an approval under the unamended LG Act 1993, or
(b)	in the case of work in the nature of subdivision work, as it could have imposed on a subdivision approval under Part 12 of the repealed LG Act 1919.

(3)

Conditions imposed under subclause (2):

(a)	are not to deal with matters of a kind that. under the amended EP&A Act 1979 or the amended EP&A Regulation 1994, must be done before the construction certificate may be issued, and
(b)	are not to be inconsistent with any conditions to which the original development consent is subject.

(4)

A construction certificate in relation to the erection of a building is not to be forwarded or delivered to the person to whom it is granted unless:

(a)	the certifying authority for the development (which, by virtue of clause 30, will be a consent authority or council) is satisfied that any long service levy payable under section 34 of the Building and Construction Industry Long Service Payments Act 1986 (or, where such a levy is payable by instalments, the first instalment of the levy) has been paid, and
(b)	the certificate identifies the classification of the building in accordance with the Building Code of Australia.

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Construction of references to certain approvals

In any development consent granted under the unamended EP&A Act 1979 before, on or after the appointed day:

(a)	a reference to an approval under Division 3 of Part 1 of Chapter 7 of the unamended L G Act 1993 for the erection of a building (in whatever terms expressed) is taken to be a reference to a construction certificate under the amended EP&A Act 1979 for the building work involved in the erection of the building, and
(b)	a reference to a certificate of classification under the Local Government (Approvals) Regulation

1993 (in whatever terms expressed) is taken to be

a reference to an occupation certificate.

Omit "section 149D” from clause 59 (2) (a).
Insert instead "sections 149A-149D”.