Environmental Planning and Assessment Amendment Act 2017 (NSW)
An Act to amend the Environmental Planning and Assessment Act 1979 with respect to the system of environmental planning and assessment in New South Wales; and for other purposes.
This Act is the Environmental Planning and Assessment Amendment Act 2017.
This Act commences on a day or days to be appointed by proclamation.
Omit the section. Insert after section 2:
The objects of this Act are as follows:
(a) to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State’s natural and other resources,
(b) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment,
(c) to promote the orderly and economic use and development of land,
(d) to promote the delivery and maintenance of affordable housing,
(e) to protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats,
(f) to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage),
(g) to promote good design and amenity of the built environment,
(h) to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants,
(i) to promote the sharing of the responsibility for environmental planning and assessment between the different levels of government in the State,
(j) to provide increased opportunity for community participation in environmental planning and assessment.
Renumber the sections in the Part with decimal numbering commencing with section 1.1.
Omit section 2 (1) and (2). Insert instead:
This Act commenced on 1 September 1980.
The Historical notes set out at the end of the Act on the NSW legislation website sets out the various Acts and instruments that have amended this Act and the dates on which each commenced.
Omit the following definitions from section 4 (1):
Insert the following definitions in alphabetical order:
(a) the rebuilding of, the making of alterations to, or the enlargement or extension of, a building, or
(b) the placing or relocating of a building on land, or
(c) enclosing a public place in connection with the construction of a building, or
(d) erecting an advertising structure over a public road, or
(e) extending a balcony, awning, sunshade or similar structure or an essential service pipe beyond the alignment of a public road,
but does not include any act, matter or thing excluded by the regulations (either generally for the purposes of this Act or only for the purposes of specified provisions of this Act).
The
(a) the renewal of, the making of alterations to, or the enlargement or extension of, a work, or
(b) enclosing a public place in connection with the carrying out of a work.
Omit “, but does not include a manufactured home, moveable dwelling or associated structure or part of a manufactured home, moveable dwelling or associated structure”.
Insert instead “, but does not include a manufactured home, moveable dwelling or associated structure within the meaning of the Local Government Act 1993”.
Omit paragraph (b). Insert instead:
manufactured home, moveable dwelling or associated structure within the meaning of the Local Government Act 1993,
a vehicle of any description,
Omit the subsections.
Omit the subsection. Insert instead:
A power, express or implied, to make or give an order, direction, declaration, determination or other instrument under this Act or under an instrument made under this Act includes a power to revoke or amend the order, direction, declaration, determination or other instrument.
Insert after section 4:
For the purposes of this Act,
(a) the use of land,
(b) the subdivision of land,
(c) the erection of a building,
(d) the carrying out of a work,
(e) the demolition of a building or work,
(f) any other act, matter or thing that may be controlled by an environmental planning instrument.
However, development does not include any act, matter or thing excluded by the regulations (either generally for the purposes of this Act or only for the purposes of specified provisions of this Act).
For the purposes of this Act, the
There are the following categories of development under this Act:
(a) exempt development (development that is exempt from the assessment and consent or approval requirements of this Act),
(b) development requiring development consent under Part 4, including the following:
(i) complying development (development that complies with pre-determined development standards and requires consent in the form of a complying development certificate by a consent authority or accredited certifier),
(ii) development that requires consent by a council or other public authority specified as the consent authority (including by a local planning panel or delegated council staff on behalf of a council),
(iii) regionally significant development (development that requires consent by a Sydney district or regional planning panel),
(iv) State significant development (development that requires consent by the Independent Planning Commission or the Minister),
(v) designated development (development, other than State significant development, that requires an environmental impact statement for an application for consent),
(vi) integrated development (development that also requires approvals under other legislation that are integrated under general terms of approval),
(c) development that is an activity requiring environmental assessment under Division 5.1 before it is carried out by a public authority or before a public authority gives approval for the carrying out of the activity,
(d) State significant infrastructure (including critical State significant infrastructure) requiring approval under Division 5.2 by the Minister.
The carrying out of exempt development does not require:
(a) development consent under Part 4, or
(b) environmental impact assessment under Division 5.1, or
(c) State significant infrastructure approval under Division 5.2, or
(d) a certificate under Part 6 (Building and subdivision certification).
Exempt development is development that is declared to be exempt development by an environmental planning instrument because of its minor impact.
Transfer to the beginning of Part 8 (Miscellaneous—to be renumbered as Part 10) renumbered as section 10.1.
Omit the definition of
Omit section 76 (2) and (3).
Insert “(being land for the time being recorded as bush fire prone land on a relevant map certified under section 10.3 (2))” after “bush fire prone land” in section 79BA (1).
Omit Parts 2 and 2A. Insert instead:
The Minister has portfolio responsibility for planning and for the administration of the provisions of this Act allocated to the Minister by an administrative arrangements order under the Constitution Act 1902.
The Minister has the functions conferred or imposed on the Minister under this Act.
The Planning Secretary has departmental responsibility for planning and for the administration of the provisions of this Act allocated to the Minister by an administrative arrangements order under the Constitution Act 1902.
The Planning Secretary has the functions conferred or imposed on the Planning Secretary under this Act.
The Planning Secretary may provide advice, recommendations and reports to the Minister in connection with the administration of this Act (whether on the Planning Secretary’s own initiative or as required by the Minister).
The Planning Secretary is, in the exercise of any function under this Act, subject to the control and direction of the Minister (except in relation to the contents of any advice, recommendation or report provided to the Minister by the Planning Secretary).
The Minister or the Planning Secretary may, by order published on the NSW legislation website, establish panels for the purposes of this Act.
The chairperson and other members of any such panel are to be appointed by the Minister or the Planning Secretary (as the case requires).
The functions of any such panel are to be as specified in the order by which it is established, and (without limitation) may include:
(a) the investigation of any matter relevant to the administration of this Act, or
(b) the provision of advice, recommendations or reports with respect to any such matter to the Minister, the Planning Secretary or other person or body engaged in the administration of this Act.
This subsection does not limit any functions conferred on any such panel under this or any other Act.
Any such panel is not subject to the direction or control of the Minister or the Planning Secretary (except in relation to the procedure of the panel and any directions under section 9.1).
The order establishing any such panel is to specify the name of the panel. The word “panel” is not required to be included in the name of the panel.
Schedule 2 contains provisions with respect to the members and procedure of any such panel.
The regulations may make provision for or with respect to the functions, members and procedure of any such panel.
Any such panel is a NSW Government agency, unless the order by which it is established provides that it is not a NSW Government agency.
By virtue of section 13A of the Interpretation Act 1987, a NSW Government agency has the status, privileges and immunities of the Crown.
The Minister, the Planning Ministerial Corporation or the Planning Secretary may delegate any of their functions under this Act to:
(a) a person employed in the Department of Planning and Environment, or
(b) the Greater Sydney Commission, or
(c) the Independent Planning Commission, or
(d) a Sydney district planning panel, or
(e) a regional planning panel, or
(f) a public authority or member of staff of a public authority, or
(g) a council or member of staff of a council, or
(h) a person, or person of a class, authorised for the purposes of this section by the regulations.
A reference in this section to a function under this Act includes a reference to:
(a) a function of the Minister under any other Act that is conferred or imposed on the Minister in his or her capacity as the Minister administering this Act or in connection with the administration of this Act, or
(b) a function of the Planning Ministerial Corporation under any other Act, or
(c) a function of the Planning Secretary under any other Act that is conferred or imposed on the Planning Secretary in connection with the administration of this Act.
This section does not authorise the delegation of:
(a) the power of delegation conferred by this section, or
(b) the function of the Minister under Division 5.2 of determining an application for approval to carry out critical State significant infrastructure, or
(c) any function of the Minister of giving directions under section 9.1 or of appointing a planning administrator or exercising other functions under section 9.6.
There is constituted by this Act a corporation with the corporate name of the Planning Ministerial Corporation.
The Planning Ministerial Corporation has such functions as are conferred or imposed on it under this or any other Act.
The Planning Ministerial Corporation is a NSW Government agency.
The affairs of the Planning Ministerial Corporation are to be managed by the Planning Secretary in accordance with any directions of the Minister.
Any act, matter or thing done in the name of, or on behalf of, the Planning Ministerial Corporation by the Planning Secretary, or with the authority of the Planning Secretary, is taken to have been done by the Corporation.
The regulations may make provision with respect to the seal of the Planning Ministerial Corporation.
The annual report of the Planning Ministerial Corporation is to be published as part of the annual report of the Department of Planning and Environment.
Schedule 2 contains property provisions relating to the Planning Ministerial Corporation and Division 7.3 contains financial provisions relating to the Corporation.
There is constituted by this Act a corporation with the corporate name of the Independent Planning Commission of New South Wales.
The Commission is not subject to the direction or control of the Minister (except in relation to the procedure of the Commission and any directions authorised to be given to the Commission under section 9.1 or other provision of this Act).
The Commission is a NSW Government agency.
The Independent Planning Commission is to consist of such members as are appointed by the Minister.
One member of the Commission is, in the instrument of appointment or a subsequent instrument, to be appointed as the chairperson of the Commission.
Each member is to have expertise in at least one area of planning, architecture, heritage, the environment, urban design, land economics, soil or agricultural science, hydro-geology, mining or petroleum development, traffic and transport, law, engineering, tourism or government and public administration.
In appointing a member of the Commission, the Minister is to have regard to the need to have a range of expertise represented among the Commission’s members.
The Minister may appoint additional members of the Commission for the purposes of exercising specific functions of the Commission. An additional member is not required to have expertise in an area referred to in this section but is required to have expertise in an area relevant to the functions the member is to exercise.
The Independent Planning Commission has the following functions:
(a) the functions of the consent authority under Part 4 for State significant or other development that are (subject to this Act) conferred on it under this Act,
(b) any functions under this Act that are delegated to the Commission,
(c) to advise the Minister or the Planning Secretary on any matter on which the Minister or the Planning Secretary requests advice from the Commission,
(d) to hold a public hearing into any matter into which the Minister requests the Commission to hold a public hearing,
(e) any function of a Sydney district or regional planning panel or a local planning panel in respect of a particular matter that the Minister requests the Commission to exercise (to the exclusion of the panel),
(f) if a Sydney district or regional planning panel has not been appointed for any part of the State, any function that is conferred on any such panel under an environmental planning instrument applicable to that part or that is otherwise conferred on any such panel under this Act,
(g) any other function conferred or imposed on it under this or any other Act.
Division 5 of Part 4AA of State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 provides that a subcommittee appointed by the Independent Planning Commission exercises the gateway functions of the Mining and Petroleum Gateway Panel under that Policy.
The matters on which advice may be provided under subsection (1) (c), or into which a public hearing may be held under subsection (1) (d), include any general or particular planning or development matter, the administration of this Act or any related matter.
For the purpose of exercising any of its functions with respect to a particular matter, the Independent Planning Commission is, subject to any direction of the Minister under this section, to be constituted by one or more members determined by the chairperson of the Commission.
The Minister may give any of the following directions to the chairperson with respect to the constitution of the Commission for a particular matter or class of matters:
(a) a direction as to the number of members that are to constitute the Commission,
(b) a direction as to the specified members, or members with specified qualifications or expertise, that are to constitute the Commission.
The Commission may, at any time, exercise by the same or different members one or more of its functions.
Schedule 2 contains provisions with respect to the Independent Planning Commission (including with respect to public hearings by, and to the members and procedures of, the Commission).
The work of the Independent Planning Commission is, subject to this Act, to be allocated by the chairperson of the Commission. The chairperson may nominate another member to allocate the work of the Commission during any period the chairperson is unavailable.
The Independent Planning Commission may:
(a) arrange for the use of the services of any staff or facilities of the Department of Planning and Environment or other public authority, and
(b) engage such consultants as it requires to exercise its functions.
The Independent Planning Commission may, with the approval of the Minister, delegate any function of the Commission under this or any other Act (other than this power of delegation) to any person or body specified in the Minister’s approval.
The Sydney district planning panels specified in Part 3 of Schedule 2 are constituted for the particular parts of the Greater Sydney Region so specified in relation to each such panel.
The regional planning panels specified in Part 3 of Schedule 2 are constituted for the particular parts of the State (other than the Greater Sydney Region) so specified in relation to each such panel.
A Sydney district or regional planning panel is not subject to the direction or control of the Minister (except in relation to the procedure of the panel and any directions authorised to be given to the panel under section 9.1 or other provision of this Act).
A Sydney district or regional planning panel is a NSW Government agency.
The Minister may, by order published on the NSW legislation website, amend Part 3 of Schedule 2 for any of the following purposes:
(a) to constitute a Sydney district planning panel and to specify the part of the Greater Sydney Region for which it is constituted (including by constituting a single panel for the whole of the Region),
(b) to constitute a regional planning panel and to specify the part of the State (other than the Greater Sydney Region) for which it is constituted,
(c) to abolish a Sydney district or regional planning panel,
(d) to change the name of a Sydney district or regional planning panel or to change the part of the Greater Sydney Region or State for which it is constituted,
(e) to make savings and transitional provisions consequent on any of the above.
A Sydney district planning panel is to consist of the following 5 members:
(a) 3 members appointed by the Minister (the
State members ),(b) 2 nominees of an applicable council (the
council nominees ) who are councillors, members of council staff or other persons nominated by the council.
A regional planning panel is to consist of the following 5 members:
(a) 3 members appointed by the Minister (the
State members ),(b) 2 nominees of an applicable council (the
council nominees ) who are councillors, members of council staff or other persons nominated by the council.
A person is not eligible to be a member of a Sydney district or regional planning panel if the person is:
(a) a property developer within the meaning of section 96GB of the Election Funding, Expenditure and Disclosures Act 1981, or
Note— Section 96GB (1) of the Election Funding, Expenditure and Disclosures Act 1981 provides that
property developer includes a person who is a close associate of a property developer.(b) a real estate agent within the meaning of the Property, Stock and Business Agents Act 2002.
However, a person is not ineligible to be a member of a Sydney district or regional planning panel merely because the person carries on the business of a planning consultant.
The State members of a Sydney district or regional planning panel are to be persons who have expertise in at least one area of planning, architecture, heritage, the environment, urban design, land economics, traffic and transport, law, engineering, tourism or government and public administration. In appointing State members, the Minister is to have regard to the need to have a range of expertise represented among the panel’s members.
At least one of the council nominees of a Sydney district or regional planning panel is to be a person who has expertise in at least one area of planning, architecture, heritage, the environment, urban design, land economics, traffic and transport, law, engineering or tourism.
Each applicable council is to nominate 2 persons as council nominees for the purposes of a Sydney district or regional planning panel. If an applicable council fails to nominate one or more council nominees, a Sydney district or regional planning panel is not required to include 2 council nominees for the purposes of exercising its functions in relation to the area of the council concerned.
For the purposes of exercising the functions of a Sydney district or regional planning panel in relation to a matter, the council nominees on the panel are to be those nominated by the applicable council for the land to which the matter relates.
In this section:
One of the State members of a Sydney district or regional planning panel is to be appointed by the Minister as chairperson of the panel.
The Minister is required to obtain the concurrence of Local Government NSW to the appointment of a chairperson unless Local Government NSW:
(a) fails to notify its concurrence or refusal to concur within 21 days of being requested to do so by the Minister, or
(b) refuses to concur in the appointment of 2 different persons proposed by the Minister.
A Sydney district or regional planning panel has the following functions:
(a) the functions of the consent authority under Part 4 for regionally significant development that are (subject to this Act) conferred on it under this Act,
(b) any functions under this Act of a council within its area that are conferred on it under section 9.6,
(c) to advise the Minister or the Planning Secretary as to planning or development matters relating to the part of the State for which it is constituted (or any related matters) if requested to do so by the Minister or the Planning Secretary,
(d) any other function conferred or imposed on it under this or any other Act.
Under section 9.7, a panel (or the Independent Planning Commission if acting in place of the panel) is, in the exercise of a function referred to in paragraph (b), taken to be the council and is to exercise the function to the exclusion of the council.
Schedule 2 contains provisions with respect to the members and procedure of Sydney district or regional planning panels.
A Sydney district or regional planning panel is required to give written reasons for its decisions and make them publicly available on a website of or used by the panel. A decision is not invalid merely because of a failure to give or publish the reasons or all of the reasons for the decision.
The regulations may make provision for or with respect to the following:
(a) the functions conferred under this Act on a Sydney district or regional planning panel, including its procedures in exercising its functions,
(b) without limiting paragraph (a), providing that parties to matters being determined by a Sydney district or regional planning panel are not to be represented (whether by an Australian legal practitioner or any other person) or are only to be represented in specified circumstances,
(c) the provision of information and reports by Sydney district or regional planning panels.
The Planning Secretary is, in the annual report of the Department of Planning and Environment, to report on the activities of Sydney district or regional planning panels during the reporting year under section 9.6.
Legal proceedings by or against a Sydney district or regional planning panel are to be taken in the name of the panel and not by or against the members of the panel.
A Sydney district or regional planning panel may, with the approval of the Minister, delegate any function of the panel under this or any other Act (other than this power of delegation) to:
(a) a council, or
(b) a local planning panel of a council, or
(c) the general manager or other staff of a council,
for any area or part of any area for which the Sydney district or regional planning panel is constituted.
For the avoidance of doubt, a member of a Sydney district or regional planning panel is a public official for the purposes of the Independent Commission Against Corruption Act 1988.
A council may constitute a single local planning panel for the whole of the area of the council.
The following councils must constitute a single local planning panel for the whole of the area of the council:
(a) the council of an area that is wholly within the Greater Sydney Region,
(b) the council of the City of Wollongong,
(c) the council of any other area prescribed by the regulations.
A single local planning panel may be constituted by 2 or more councils. In that case, any function exercisable by a council in relation to the panel is to be exercised jointly by all those councils.
The Minister may, under section 9.1, direct 2 or more particular councils referred to in subsection (2) to constitute a single local planning panel.
If a council fails to constitute a local planning panel that it is required to constitute, the Minister may constitute the panel and for that purpose is taken to be the council.
A local planning panel is subject to any directions of the Minister under section 9.1.
A local planning panel is not subject to the direction or control of the council, except in relation to any matter relating to the procedure of the panel (or to the time within which it is to deal with a matter) that is not inconsistent with any directions of the Minister under section 9.1.
The members of a local planning panel are to be appointed by the relevant council.
Each local planning panel is to comprise (subject to this section) the following 4 members:
(a) an approved independent person appointed as the chairperson of the panel with relevant expertise that includes expertise in law or in government and public administration,
(b) 2 other approved independent persons with relevant expertise,
(c) a representative of the local community who is not a councillor or mayor.
A person is not eligible to be a member of a local planning panel constituted by a council if the person is:
(a) a councillor of that or any other council, or
(b) a property developer within the meaning of section 96GB of the Election Funding, Expenditure and Disclosures Act 1981, or
Note— Section 96GB (1) of the Election Funding, Expenditure and Disclosures Act 1981 provides that
property developer includes a person who is a close associate of a property developer.(c) a real estate agent within the meaning of the Property, Stock and Business Agents Act 2002.
However, a person is not ineligible to be a member of a local planning panel merely because the person carries on the business of a planning consultant.
For the purposes of this section, an
If the area of the relevant council is divided into wards, the council is to appoint representatives of the local community for each ward as members of the local planning panel. All those representatives are entitled to attend a meeting of the local planning panel, but only one of them designated by the chairperson of the panel comprises the quorum for the meeting and is entitled to vote and be heard on a matter before the panel.
The representative so designated by the chairperson for a matter before the panel is to be the representative for the ward that the chairperson considers is most closely associated with that matter.
Relevant expertise for the purposes of this section is expertise in at least one area of planning, architecture, heritage, the environment, urban design, economics, traffic and transport, law, engineering, tourism or government and public administration.
A local planning panel constituted by a council has the following functions:
(a) the specified functions of a council as a consent authority under Part 4 that are conferred on it under this Act,
(b) to advise the council on any planning proposal that has been prepared or is to be prepared by the council under section 3.33 and that is referred to the panel by the council,
(c) to advise the council on any other planning or development matter that is to be determined by the council and that is referred to the panel by the council.
The Minister may give directions to councils under section 9.1 (either to particular councils or to councils generally) on the planning proposals that are required to be referred to a local planning panel for advice.
This section does not limit the functions that may be exercised by a local planning panel under this Act.
Schedule 2 contains provisions with respect to the members and procedure of local planning panels.
A local planning panel is required to give written reasons for its decisions and make them publicly available on a website of or used by the panel. A decision is not invalid merely because of a failure to give or publish the reasons or all of the reasons for the decision.
The regulations may make provision for or with respect to the following:
(a) the functions conferred under this Act on local planning panels, including the procedures of panels in exercising their functions,
(b) without limiting paragraph (a), providing that parties are not to be represented (whether by an Australian legal practitioner or any other person) or are only to be represented in specified circumstances,
(c) the provision of information or reports by councils with respect to the exercise of functions by local planning panels.
The council is to provide staff and facilities for the purpose of enabling a local planning panel to exercise its functions.
The council is to monitor the performance of local planning panels constituted by the council.
A council that has constituted a local planning panel must provide a report to the Planning Secretary, each year or other period directed by the Planning Secretary, as to the following:
(a) whether a local planning panel had been constituted by the council during the reporting period,
(b) the matters referred to the panel in the reporting period,
(c) the persons appointed to the panel,
(d) any other matters relating to the exercise of functions by the panel as directed by the Planning Secretary.
Legal proceedings by or against a local planning panel are to be taken in the name of the panel and not by or against the members of the panel.
A local planning panel may delegate any function of the panel under this or any other Act (other than this power of delegation) to the general manager or other staff of the council. Section 381 of the Local Government Act 1993 does not apply to any such delegation.
For the avoidance of doubt, a member of a local planning panel is a public official for the purposes of the Independent Commission Against Corruption Act 1988.
This Division applies to the following planning authorities:
(a) the Minister,
(b) the Planning Secretary,
(c) the Greater Sydney Commission,
(d) the Independent Planning Commission,
(e) a Sydney district or regional planning panel,
(f) a council,
(g) a local planning panel,
(h) a determining authority under Part 5,
(i) a public authority prescribed by the regulations.
This Division applies to the exercise of the following planning functions by any such planning authority (
(a) planning instrument functions under Part 3,
(b) development consent functions under Part 4,
(c) environmental impact assessment functions under Division 5.1 if an environmental impact statement is required,
(d) State significant infrastructure approval functions under Division 5.2,
(e) contribution plan functions under Part 7,
(f) any other function under this Act prescribed by the regulations.
Part 1 of Schedule 1 sets out the mandatory requirements for community participation by planning authorities with respect to the exercise of relevant planning functions.
The mandatory requirements include public exhibition for a minimum period, public notification requirements and the giving of reasons for decisions by planning authorities. The regulations under that Schedule may also require community consultation by applicants for consents or other approvals.
Those mandatory requirements for community participation include any other forms of community participation that are set out in a community participation plan under this Division and that are identified in that plan as mandatory requirements.
A planning authority to which this Division applies is required to prepare a community participation plan about how and when it will undertake community participation when exercising relevant planning functions (subject to this section).
Schedule 1 requires a proposed plan to be publicly exhibited for at least 28 days.
A planning authority is to have regard to the following when preparing a community participation plan:
(a) The community has a right to be informed about planning matters that affect it.
(b) Planning authorities should encourage effective and on-going partnerships with the community to provide meaningful opportunities for community participation in planning.
(c) Planning information should be in plain language, easily accessible and in a form that facilitates community participation in planning.
(d) The community should be given opportunities to participate in strategic planning as early as possible to enable community views to be genuinely considered.
(e) Community participation should be inclusive and planning authorities should actively seek views that are representative of the community.
(f) Members of the community who are affected by proposed major development should be consulted by the proponent before an application for planning approval is made.
(g) Planning decisions should be made in an open and transparent way and the community should be provided with reasons for those decisions (including how community views have been taken into account).
(h) Community participation methods (and the reasons given for planning decisions) should be appropriate having regard to the significance and likely impact of the proposed development.
For the purposes of this Division:
(a) a community participation plan prepared by the Planning Secretary applies to the exercise of relevant planning functions by the Minister, and
(b) a general community participation plan prepared by the Planning Secretary applies to the exercise of relevant planning functions by determining authorities under Division 5.1 (other than councils or prescribed public authorities), and
(c) the regulations may provide that the community participation plan of a planning authority applies to the exercise of relevant planning functions by another planning authority and that the other planning authority is not required to prepare its own community participation plan.
A council need not prepare a separate community participation plan if it includes all the matters required under this section in its plan and strategies under section 402 of the Local Government Act 1993.
Community participation plans are to be published on the NSW planning portal.
If the validity of a community participation plan has not been challenged in proceedings commenced in the Court within 3 months after the plan is published, the plan is taken to have been validly made under this Division.
Community participation plans are to be reviewed periodically.
The regulations may make provision for or with respect to:
(a) the form, content and procedures for making and publishing community participation plans (or any amendment of those plans), and
(b) reports on the implementation of community participation plans.
The Planning Secretary is to establish and facilitate the online delivery of planning services and information (including the NSW planning portal).
Schedule 3 contains provisions relating to the NSW planning portal and the online delivery of those services and information.
The Independent Planning Commission or a Sydney district or regional planning panel must not exercise a function that will result in the making of a decision that will have, or that might reasonably be expected to have, a significantly adverse financial impact on a council until after it has consulted with the council.
This section does not apply to the determination of a development application made by a council.
The Independent Planning Commission or a Sydney district or regional planning panel is entitled, on request made to the general manager of a council:
(a) to have access to, and to make copies of and take extracts from, records of the council relevant to the exercise of the Commission’s or panel’s functions, and
(b) to the use of the staff and facilities of the council in order to exercise the Commission’s or panel’s functions, and
(c) to any other assistance or action by the council for the purposes of exercising the Commission’s or panel’s functions.
The regulations may make provision with respect to assistance and action under this section.
A matter or thing done, or omitted to be done, by:
(a) the Minister, or
(b) the Planning Secretary, or
(c) any person employed in the Department of Planning and Environment, or
(d) an investigation officer under Part 9, or
(e) a member of a panel established by the Minister or the Planning Secretary under this Part, or
(f) a member of the Independent Planning Commission, or
(g) a member of a Sydney district or regional planning panel, or
(h) a member of a local planning panel, or
(i) any individual acting under the direction of a person or body referred to above, or
(j) any individual acting as the delegate of a person or body referred to above,
does not subject the Minister, the Planning Secretary or any such person, officer, member or individual so acting personally to any action, liability, claim or demand if the matter or thing was done, or omitted to be done, in good faith for the purpose of the administration of this Act.
In this section,
See sections 377–381 of the Local Government Act 1993 in relation to the delegation of functions by councils.
A public authority may delegate any function of the public authority under this Act (other than this power of delegation) to a member of staff of the public authority. If the public authority is a chief executive officer, the function may be delegated to any member of staff of the public authority of which he or she is the chief executive officer.
A member of staff of a public authority may delegate any function of the member of staff under this Act (other than this power of delegation) to any other member of staff of the public authority. However, if the function is a delegated function, the function cannot be subdelegated unless subdelegation is authorised by the terms of the original delegation.
A power conferred by this section is in addition to any other power of delegation of the public authority or member of staff or any power of a person to exercise functions on behalf of the public authority.
Section 381 of the Local Government Act 1993 does not apply to a delegation under this Act to the general manager or other employee of a council.
Any instrument of delegation under this Act by the Minister, the Planning Ministerial Corporation, the Planning Secretary, the Independent Planning Commission, a Sydney district planning panel or a regional planning panel is to be published on the NSW planning portal.
Failure to comply with this section does not affect the validity of any such delegation.
Insert in appropriate order:
28 days.
45 days.
28 days.
28 days or:
(a) if a different period of public exhibition is specified in the gateway determination for the proposal—the period so specified, or
(b) if the gateway determination specifies that no public exhibition is required because of the minor nature of the proposal—no public exhibition.
28 days.
28 days.
14 days or:
(a) if a different period of public exhibition is specified for the application in the relevant community participation plan—the period so specified, or
(b) if the relevant community participation plan specifies that no public exhibition is required for the application—no public exhibition.
28 days.
28 days.
The period (if any) determined by the consent authority in accordance with the relevant community participation plan.
28 days.
28 days.
The period (if any) determined by the person or body responsible for publicly exhibiting the application or matter.
If this Part requires a plan, application or other matter to be publicly exhibited, the plan or application is not to be made or determined (or the other matter finalised) until after the minimum period of public exhibition under this Part.
If the plan, application or other matter is placed on public exhibition for a specified longer period, the plan or application is not to be made or determined (or the other matter finalised) until after that specified longer period.
Submissions with respect to a plan, application or other matter may be made during the minimum period of its public exhibition under this Part.
If the plan, application or other matter is placed on public exhibition for a specified longer period, submissions may be made during that specified longer period.
The period between 20 December and 10 January (inclusive) is excluded from the calculation of a period of public exhibition.
See also section 36 (2) of the Interpretation Act 1987 for the applicable rule where an exhibition period includes a weekend or public holiday.
If a particular matter has different exhibition or notification periods that apply under this Part, the longer period applies.
A public authority is not required to make available for public inspection any part of an environmental impact statement whose publication would, in the opinion of the public authority, be contrary to the public interest because of its confidential nature or for any other reason.
The mandatory notification requirements of development and other applications under this Act and of the making of decisions with respect to those applications under this Act are the requirements prescribed by this Part, or the requirements prescribed by the regulations, as mandatory notification requirements.
This clause applies to the following decisions:
(a) the determination by the Minister (or the Independent Planning Commission) of an application for State significant infrastructure,
(b) the determination by the Minister (or the Independent Planning Commission) of a request for a modification of an approval for State significant infrastructure (being a request that was publicly exhibited),
(c) the determination by a consent authority of an application for development consent,
(d) the determination by a consent authority of an application for the modification of a development consent (being an application that was publicly exhibited),
(e) the granting of an approval, or the decision to carry out development, by a determining authority where an environmental impact statement was publicly exhibited under Division 5.1.
The mandatory notification requirement in relation to a decision to which this clause applies is public notification of:
(a) the decision, and
(b) the date of the decision, and
(c) the reasons for the decision (having regard to any statutory requirements applying to the decision), and
(d) how community views were taken into account in making the decision.
The regulations may amend Part 1 of this Schedule:
(a) to prescribe additional mandatory requirements for community participation, or
(b) to make other changes to that Part.
The regulations may set out the method of public exhibition under this Act, how people can make submissions and how people can obtain further information.
The regulations may specify the requirements for something to be considered a submission for the purposes of this Act.
The regulations may specify the circumstances in which a plan or other matter is required or not required to be re-exhibited.
Re-exhibition is not required if the environmental impact of the development has been reduced or not increased.
The regulations may require applicants for development consent or other approvals under this Act (or for the modification of any such consent or approval) to undertake community consultation in relation to their applications.
Insert in appropriate order:
(Sections 2.3, 2.11, 2.12, 2.16, 2.20))
In this Schedule:
(a) the Independent Planning Commission,
(b) a Sydney district planning panel,
(c) a regional planning panel,
(d) a local planning panel,
(e) a panel established by the Minister or Planning Secretary under section 2.3.
In this Part:
The Commission must conduct a public hearing if (and only if):
(a) the Commission is requested to do so by the Minister under section 2.9 (1) (d), or
(b) the Minister has determined in a gateway determination that the Commission is to conduct a public hearing into a planning proposal for provisions of a local environmental plan.
The Commission must give reasonable notice of the public hearing:
(a) by advertisement published in such newspapers as the Commission thinks fit, and
(b) by notice in writing to any public authorities that the Commission thinks are likely to have an interest in the subject-matter of the public hearing.
The notice of a public hearing must contain the following matters:
(a) the subject-matter of the public hearing,
(b) the time, date and place of the public hearing,
(c) a statement that submissions may be made to the Commission in relation to the subject-matter concerned not later than the date specified in the notice (being a date not less than 14 days after the notice is given),
(d) if the public hearing relates to an application for development consent—a statement of the effect the public hearing will have on any appeal rights in relation to the application.
If the Commission is satisfied that it is desirable to do so in the public interest because of the confidential nature of any evidence or matter or for any other reason, the Commission may direct that part of any public hearing is to take place in private and give directions as to the persons who may be present.
The chairperson of the Commission may require a person:
(a) to attend a public hearing of the Commission to give evidence, or
(b) to produce to the Commission a document that is relevant to a public hearing conducted by the Commission,
at a time, date and place specified in a notice given to the person.
A person must not, without reasonable excuse, fail to comply with a requirement to attend a public hearing, or to produce a document.
Maximum penalty: $11,000.
The Commission may permit a person appearing as a witness before the Commission to give evidence by tendering a written statement.
If the Commission is satisfied that it is desirable to do so in the public interest because of the confidential nature of any evidence or matter or for any other reason, the Commission may direct that evidence given before the Commission or contained in documents lodged with the Commission is not to be published or may only be published subject to restrictions.
A person must not, without reasonable excuse, fail to comply with a direction given by the Commission under this clause.
Maximum penalty: $11,000.
The Commission must provide a copy of its findings and recommendations after a public hearing held by it (a
(a) to the Minister or to such other person or body as the Minister may direct, and
(b) in the case of proposed development the subject of an application for development consent—to the consent authority and to any public authority whose concurrence is required to the development, and
(c) to such other persons as the Commission thinks fit.
A final report must contain a summary of any submissions received by the Commission in relation to the subject-matter of the public hearing.
A final report is to be made publicly available on the NSW planning portal within a reasonable time after it has been provided to the Minister or to a person or body directed by the Minister.
The Commission must provide to the Minister an annual report on its operations in the preceding year.
An annual report is to be made publicly available on a government website within a reasonable time after it has been provided to the Minister.
The regulations may make provision for or with respect to the following:
(a) the procedures of the Commission, including the procedures for public hearings relating to any or all, or a class, of its functions,
(b) without limiting paragraph (a), providing that parties are not to be represented (whether by an Australian legal practitioner or any other person) or are to be represented only in specified circumstances,
(c) requiring the provision of information to the Commission for the purposes of a public hearing or the exercise of any of its other functions,
(d) the provision of information or reports by the Commission.
The following Sydney district planning panels are constituted for the parts of the Greater Sydney Region (within the meaning of the Greater Sydney Commission Act 2015) situated within the local government areas specified in relation to each panel:
(a) Sydney Eastern City Planning Panel—local government areas of Bayside, Burwood, Canada Bay, Inner West, City of Randwick, Strathfield, City of Sydney, Waverley and Woollahra.
(b) Sydney North Planning Panel—local government areas of Hornsby, Hunter’s Hill, Ku-ring-gai, Lane Cove, Mosman, North Sydney, Northern Beaches, City of Ryde and City of Willoughby.
(c) Sydney South Planning Panel—local government areas of Canterbury-Bankstown, Georges River and Sutherland Shire.
(d) Sydney Central City Planning Panel—local government areas of City of Blacktown, Cumberland, City of Parramatta and The Hills Shire.
(e) Sydney West City Planning Panel—local government areas of City of Blue Mountains, City of Campbelltown, Camden, City of Fairfield, City of Hawkesbury, City of Liverpool, City of Penrith and Wollondilly.
The following regional planning panels are constituted for the parts of the State situated within the local government areas specified in relation to each panel:
(a) Hunter and Central Coast Regional Planning Panel—local government areas of Central Coast, Cessnock City, Dungog, Lake Macquarie City, Maitland City, Muswellbrook, Newcastle City, Port Stephens, Singleton and Upper Hunter Shire.
(b) Northern Regional Planning Panel—local government areas of Armidale Regional, Ballina, Bellingen, Byron, Clarence Valley, Coffs Harbour City, Glen Innes Severn Shire, Gunnedah, Gwydir, Inverell, Kempsey, Kyogle, Lismore City, Liverpool Plains, Mid-Coast, Moree Plains, Nambucca, Narrabri, Port Macquarie-Hastings, Richmond Valley, Tamworth Regional, Tenterfield, Tweed, Uralla and Walcha.
(c) Southern Regional Planning Panel—local government areas of City of Albury, Bega Valley, Coolamon, Cootamundra-Gundagai Regional, Eurobodalla, Goulburn Mulwaree, Greater Hume Shire, Hilltops, Junee, Kiama, Lockhart, Queanbeyan-Palerang Regional, Shellharbour City, Shoalhaven City, Snowy Monaro Regional, Snowy Valleys, Temora, Upper Lachlan Shire, Wagga Wagga City, Wingecarribee, Wollongong City and Yass Valley.
(d) Western Regional Planning Panel—local government areas of Balranald, Bathurst Regional, Berrigan, Bland, Blayney, Bogan, Bourke, Brewarrina, Broken Hill City, Cabonne, Carrathool, Central Darling, Cobar, Coonamble, Cowra, Dubbo Regional, Edward River, Federation, Forbes, Gilgandra, Griffith City, Hay, Lachlan, Leeton, City of Lithgow, Mid-Western Regional, Murray River, Murrumbidgee, Narrandera, Narromine, Oberon, Orange City, Parkes, Walgett, Warren, Warrumbungle Shire, Weddin and Wentworth.
A member of a planning body holds office, subject to this Act and the regulations, for such period (not exceeding 3 years) as is specified in the member’s instrument of appointment.
That period may be determined by reference to the occurrence of a specified event or the completion of the exercise of particular functions of the planning body.
A member is eligible (if otherwise qualified) for re-appointment.
A member of the Independent Planning Commission may not hold office as a member for more than 6 years in total.
A State member of a Sydney district planning panel may not hold office as a member of that panel for more than 9 years in total.
A member of a local planning panel may not hold office as a member of that panel for more than 6 years in total.
The Minister may appoint a member of the Independent Planning Commission on either a full-time or part-time basis. The Minister may change the basis of the appointment during the member’s term of office.
The office of a member of any other planning body is a part-time office.
A Sydney district planning panel or a regional planning panel may elect a deputy chairperson from among its State members (either for the duration of the person’s term of office as a member or for a shorter term).
The deputy chairperson vacates office as deputy chairperson if he or she:
(a) is removed from that office by the panel, or
(b) resigns that office by instrument in writing addressed to the panel, or
(c) ceases to be a member of the panel.
A member of a planning body (other than a full-time member of the Independent Planning Commission) is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the member.
A full-time member of the Independent Planning Commission is entitled to be paid:
(a) remuneration in accordance with the Statutory and Other Offices Remuneration Act 1975, and
(b) such travelling and subsistence allowances as the Minister may from time to time determine in respect of the member.
In this clause:
The appointing authority may, from time to time, appoint a person to be the alternate of a member of a planning body, and may revoke any such appointment.
The Minister may direct appointing authorities to appoint persons as alternates of members of local planning panels.
A person is not eligible to be appointed as the alternate of a member of a planning body unless the person is eligible to be appointed as that member.
In the absence of a member, the member’s alternate may, if available, act in the place of the member.
While acting in the place of a member, a person has all the functions of the member and is taken to be a member.
A person may be appointed as the alternate of 2 or more members, but may represent only one of those members at any meeting of the planning body.
In the case of State members of a Sydney district or regional planning panel or members of a local planning panel, a number of persons may be appointed as the alternate of one or more members. The person who may act in the place of a member on any particular occasion is the person determined by the chairperson of the panel concerned.
A person while acting in the place of a member is entitled to be paid such remuneration (including travelling and subsistence allowances) as the Minister may from time to time determine in respect of the person.
If the chairperson of a planning body is appointed from among a number of members of the body, the alternate of a member who is the chairperson does not have the member’s functions as chairperson unless the appointing authority authorises the alternate to exercise those functions.
The Minister may remove a member of a planning body (other than a local planning panel) from office at any time for any reason and without notice. However, the Minister must provide a written statement of the reasons for removing the member from office and make the statement publicly available.
The Minister may remove a member of a planning body from office if the Independent Commission Against Corruption, in a report referred to in section 74C of the Independent Commission Against Corruption Act 1988, recommends that consideration be given to the removal of the member from office because of corrupt conduct by the member.
In the case of a council nominee of a Sydney district or regional planning panel, the applicable council may remove the member from office at any time for any reason and without notice. However, the general manager of the applicable council must provide a written statement of the reasons for removing the council nominee from office and make the statement publicly available.
In the case of a member of a local planning panel, the applicable council may remove the member from office at any time for any reason and without notice. However, the general manager of the applicable council must provide a written statement of the reasons for removing the member from office and make the statement publicly available.
The office of a member becomes vacant if the member:
(a) dies, or
(b) completes a term of office and is not re-appointed, or
(c) resigns the office by instrument in writing addressed to the Minister or, in the case of a council nominee of a Sydney district or regional planning panel or a member of a local planning panel), addressed to the applicable council, or
(d) is removed from office under this or any other Act, or
(e) is absent from 3 consecutive meetings of the planning body of which reasonable notice has been given to the member personally or by post, except on leave granted by the planning body or unless the member is excused by the planning body for having been absent from those meetings, or
(f) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or
(g) becomes a mentally incapacitated person, or
(h) is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable, or
(i) in the case of a member of a local planning panel—becomes a councillor, property developer or real estate agent and for that reason is not eligible to be appointed as a member of the panel.
If the office of a member becomes vacant, a person may, subject to this Act and the regulations, be appointed to fill the vacancy.
If the chairperson of a planning body is appointed by the Minister or the Planning Secretary from among a number of members of the body, the person vacates office as chairperson if he or she:
(a) is removed from the office of chairperson by the Minister or the Planning Secretary, or
(b) resigns the office of chairperson by instrument in writing addressed to the Minister or the Planning Secretary.
A person vacates office as chairperson of a planning body if the person vacates office as a member of the body.
The statutory provisions relating to the employment of Public Service employees do not apply to the appointment or office of a member.
If by or under any Act provision is made:
(a) requiring a person who is the holder of a specified office to devote the whole of his or her time to the duties of that office, or
(b) prohibiting the person from engaging in employment outside the duties of that office,
the provision does not operate to disqualify the person from holding that office and also the office of a member or from accepting and retaining any remuneration payable to the person under this Act as a member.
This clause applies where a Sydney district or regional planning panel deals with the determination of a development application regarding coastal protection works on land within the coastal zone (within the meaning of the Coastal Management Act 2016).
If any State member of the panel (other than the chairperson) does not have expertise in coastal engineering or coastal geomorphology, the Minister is to appoint an alternate of the member who has that expertise, and that alternate member is to act in the place of the State member when the panel deals with the determination of that development application.
The procedure for the calling of meetings of a planning body and for the conduct of business at those meetings is, subject to this Act, to be as determined by the planning body.
Subject to this clause, a planning body is not bound by the rules of evidence.
Nothing in this Schedule derogates from any law relating to Crown privilege.
The quorum for a meeting of a planning body is a majority of its members for the time being.
The chairperson or, in the absence of the chairperson, the deputy chairperson (if any) or a person elected by the members is to preside at a meeting of a planning body.
In the case of the Independent Planning Commission, the chairperson may appoint a member to preside at a meeting of the Commission, in which case a reference in subclause (1) to the chairperson includes a reference to any such appointed member.
The presiding member has a deliberative vote and, in the event of an equality of votes, has a second or casting vote.
A decision supported by a majority of the votes cast at a meeting of a planning body at which a quorum is present is the decision of the planning body.
The Independent Planning Commission may conduct its meetings in public, and is required to do so for the conduct of any business that is required by the Minister to be conducted in public.
A planning body (other than the Independent Planning Commission) is required to conduct its meetings in public.
A planning body is required to record meetings conducted in public (whether an audio/video record, an audio record or a transcription record). The record is required to be made publicly available on the website of or used by the planning body.
A planning body may, if it thinks fit, transact any of its business at a meeting at which members (or some members) participate by telephone or other electronic means, but only if any member who speaks on a matter before the meeting can be heard by the other members. Any such meeting is taken to be conducted in public if the meeting is recorded and the record made publicly available as required by subclause (3).
A planning body may, if it thinks fit, transact any of its business by the circulation of papers among all the members of the planning body for the time being, and a resolution in writing approved in writing by a majority of those members is taken to be a decision of the planning body.
For the purposes of the approval of a resolution under this clause, the chairperson and each member of the planning body have the same voting rights as they have at an ordinary meeting of the planning body.
A resolution approved under this clause is to be recorded in the minutes of the meetings of the planning body and is to be made publicly available on the website of or used by the planning body.
Papers may be circulated among the members for the purposes of this clause by electronic transmission of the information in the papers concerned.
If:
(a) a member has a pecuniary interest in a matter being considered or about to be considered at a meeting of the planning body, and
(b) the interest appears to raise a conflict with the proper performance of the member’s duties in relation to the consideration of the matter,
the member must, as soon as possible after the relevant facts have come to the member’s knowledge, disclose the nature of the interest at a meeting of the planning body.
A member has a pecuniary interest in a matter if the pecuniary interest is the interest of:
(a) the member, or
(b) the member’s spouse or de facto partner or a relative of the member, or a partner or employer of the member, or
(c) a company or other body of which the member, or a nominee, partner or employer of the member, is a member.
However, a member is not taken to have a pecuniary interest in a matter as referred to in subclause (2) (b) or (c):
(a) if the member is unaware of the relevant pecuniary interest of the spouse, de facto partner, relative, partner, employer or company or other body, or
(b) just because the member is a member of, or is employed by, a council or a statutory body or is employed by the Crown, or
(c) just because the member is a member of, or a delegate of a council to, a company or other body that has a pecuniary interest in the matter, so long as the member has no beneficial interest in any shares of the company or body.
A disclosure by a member at a meeting of the planning body that the member, or a spouse, de facto partner, relative, partner or employer of the member:
(a) is a member, or is in the employment, of a specified company or other body, or
(b) is a partner, or is in the employment, of a specified person, or
(c) has some other specified interest relating to a specified company or other body or to a specified person,
is a sufficient disclosure of the nature of the interest in any matter relating to that company or other body or to that person which may arise after the date of the disclosure and which is required to be disclosed under subclause (1).
Particulars of any disclosure made under this clause must be recorded by the planning body and that record must be open at all reasonable hours to inspection by any person on payment of the fee determined by the planning body.
After a member has disclosed the nature of an interest in any matter, the member must not:
(a) be present during any deliberation of the planning body with respect to the matter, or
(b) take part in any decision of the planning body with respect to the matter.
For the purposes of the making of a determination by the planning body under subclause (6), a member who has a direct or indirect pecuniary interest in a matter to which the disclosure relates must not:
(a) be present during any deliberation of the planning body for the purpose of making the determination, or
(b) take part in the making by the planning body of the determination.
A contravention of this clause does not invalidate any decision of the planning body.
This clause extends to a council nominee of a Sydney district or regional planning panel, and the provisions of Part 2 (Duties of disclosure) of Chapter 14 of the Local Government Act 1993 do not apply to any such nominee when exercising functions as a member of the panel.
The Minister may approve a code of conduct that is applicable to members of a planning body.
A code of conduct may relate to any conduct (whether by way of act or omission) in carrying out a member’s functions that is likely to bring the planning body or its members into disrepute.
The Minister may authorise a planning body to vary a code of conduct in relation to the members of that planning body.
A planning body must provide the Minister with such information and reports as the Minister may, from time to time, request.
For the purposes of this Act, the Planning Ministerial Corporation may, in such manner and subject to such terms and conditions as it thinks fit, sell, lease, exchange or otherwise dispose of or deal with land vested in the Corporation and grant easements or rights-of-way over that land or any part of it.
Without affecting the generality of subclause (1), the Planning Ministerial Corporation may, in any contract for the sale of land vested in it, include conditions for or with respect to:
(a) the erection of any building on that land by the purchaser within a specified period, or
(b) conferring on the Corporation an option or right to repurchase that land if the purchaser has failed to comply with a condition referred to in paragraph (a), or
(c) conferring on the Corporation an option or right to repurchase that land if the purchaser wishes to sell or otherwise dispose of that land before the expiration of a specified period or requiring the purchaser to pay to the Corporation a sum determined in a specified manner where the Corporation does not exercise that option or right, or
(d) the determination of the repurchase price payable by the Corporation pursuant to a condition referred to in paragraph (b) or (c).
A condition included in a contract of sale pursuant to subclause (2) does not merge in the transfer of title to the land, the subject of the contract of sale, on completion of the sale.
In addition to other functions conferred or imposed on the Planning Ministerial Corporation under this or any other Act, the Corporation may, for the purposes of this Act:
(a) manage land vested in the Corporation, and
(b) cause surveys to be made and plans of surveys to be prepared in relation to land vested in the Corporation or in relation to any land proposed to be acquired by the Corporation, and
(c) demolish, or cause to be demolished, any building on land vested in the Corporation of which it has exclusive possession, and
(d) provide, or arrange, on such terms and conditions as may be agreed upon for the location or relocation of utility services within or adjoining or in the vicinity of land vested in the Corporation, and
(e) subdivide and re-subdivide land and consolidate subdivided or re-subdivided land vested in the Corporation, and
(f) set out and construct roads on land vested in the Corporation or on land of which the Corporation has exclusive possession, or on any other land with the consent of the person in whom it is vested, and
(g) erect, alter, repair and renovate buildings on and make other improvements to or otherwise develop land vested in the Corporation or any other land, with the consent of a person in whom it is vested, and
(h) cause any work to be done on or in relation to any land vested in the Corporation or any other land, with the consent of the person in whom it is vested, for the purpose of rendering it fit to be used for any purpose for which it may be used under any environmental planning instrument that applies to the land, and
(i) by notification published in the Gazette, dedicate any land vested in the Corporation as a reserve for public recreation or other public purposes and fence, plant and improve any such reserve.
In the exercise of any function under subclause (4) (f), consultations are to be held with Roads and Maritime Services, the relevant council and such other persons as the Minister determines.
The relevant enforcement authority may exercise the relevant authority’s functions under this clause irrespective of whether the person required to comply with the order has been prosecuted for an offence against this Act.
In any proceedings before the Land and Environment Court that are brought by a relevant enforcement authority that gave a development control order to a person as a result of the person’s failure to comply with the order, the Court may, at any stage of the proceedings, order the relevant enforcement authority to exercise the authority’s functions under this clause. Having made such an order, the Court may continue to hear and determine the proceedings or may dismiss the proceedings.
If the Minister or the Planning Secretary gave the development control order, the Minister’s or Planning Secretary’s functions under this clause may be exercised by the Planning Ministerial Corporation.
If a relevant enforcement authority takes action under clause 33 to give effect to a development control order by demolishing a building, the authority may remove any materials concerned.
The relevant enforcement authority may sell those materials but only if the relevant authority’s expenses in giving effect to the terms of the development control order are not paid to the authority within 14 days after removal of the materials.
If the proceeds of such a sale exceed the expenses incurred by the relevant enforcement authority in relation to the demolition and the sale, the relevant authority:
(a) may deduct out of the proceeds of the sale an amount equal to those expenses, and
(b) must pay the surplus to the owner on demand.
If the proceeds of sale do not exceed those expenses, the relevant enforcement authority:
(a) may retain the proceeds, and
(b) may recover the deficiency (if any) together with the authority’s costs of recovery from the owner as a debt.
Materials removed that are not saleable may be destroyed or otherwise disposed of.
A relevant enforcement authority that carries out work under clause 33 in relation to development for which an amount of security has been provided to the authority:
(a) may be recompensed for the work from the security if the security is more than the costs of carrying out the work, and
(b) must pay any surplus remaining to the person entitled to it on demand.
Any expenses incurred under this clause by a relevant enforcement authority that gave a development control order, together with all associated costs, may be recovered by the authority in any court of competent jurisdiction as a debt due to the authority by the person required to comply with the order.
The expenses are to be reduced by the amount of any proceeds of any sale under this clause or the amount of any security provided in respect of development to which the order relates.
Nothing in this clause affects the owner’s right to recover any amount from any lessee or other person liable for the expenses concerned.
The recovery of costs and expenses by a relevant enforcement authority under this clause does not include the costs and expenses of court proceedings, but nothing in this clause prevents the authority from receiving costs as between party and party in respect of those proceedings.
This clause applies in relation to a failure to comply with any of the following development control orders:
(a) a brothel closure order,
(b) a stop use order in respect of such classes of residential, tourist or other development as are prescribed by the regulations.
In this clause, the
If a person fails to comply with a development control order to which this clause applies, the Court may, on the application of the person who gave the order, make an order (a
A utilities order is not to be made in respect of a failure to comply with a development control order that is a stop use order unless the Court is satisfied that the failure has caused or is likely to cause a significant adverse impact on health, safety or public amenity.
A utilities order may apply to the whole or part of the premises.
A utilities order ceases to have effect on the date specified in the utilities order, or 3 months after the order is made, whichever occurs first.
An application for a utilities order must not be made unless not less than 7 days notice of the proposed application is given to the following persons:
(a) any person to whom the development control order was given,
(b) any provider of water, electricity or gas to the premises who is affected by the application,
(c) any owner or occupier of the premises.
An owner or occupier of premises, or a provider of water, electricity or gas to premises, who is affected by an application for a utilities order is entitled to be heard and represented in proceedings for the order.
In determining whether to make a utilities order, the Court is to take into consideration the following matters:
(a) the effects of the failure to comply with the development control order,
(b) the uses of the premises,
(c) the impact of the order on the owner, occupier or other users of the premises,
(d) whether health, safety or public amenity will be adversely affected by the order,
(e) any other matter the Court thinks appropriate.
A utilities order must not be made for premises, or any part of premises, used for residential purposes unless the regulations authorise the making of a utilities order.
A provider of water, electricity or gas must comply with a utilities order, despite any other law or agreement or arrangement applying to the provision of water, electricity or gas to the premises, or part of the premises, concerned.
No compensation is payable to any person for any damage or other loss suffered by that person because of the making or operation of a utilities order or this clause.
A provider of water, electricity or gas must not, during a period that a utilities order is in force in relation to premises, or part of premises, require payment for the provision of water, electricity or gas services to the premises or part of the premises (other than services related to the implementation of the order).
The Court may make a utilities order when it determines an appeal against a development control order, if subclauses (7) and (8) have been complied with.
Any order that may be given to a person under this Schedule to do or refrain from doing a thing in relation to a premises or building in a tourist park, residential park or camping ground may also be given to a person apparently in charge of or managing the tourist park, residential park or camping ground who has authority to do or refrain from doing the thing.
A relevant enforcement authority that gives a development control order to a person may also serve a compliance cost notice on the person.
A
(a) monitoring action under the development control order, and
(b) ensuring that the development control order is complied with, and
(c) any costs or expenses relating to an investigation that leads to the giving of the development control order, and
(d) any costs or expenses relating to the preparation or serving of the notice of the intention to give the development control order, and
(e) any other matters associated with the development control order.
A compliance cost notice is to specify the amount required to be paid and a reasonable period within which the amount is to be paid or, if the regulations prescribe the period to be allowed for payment, that period.
The relevant enforcement authority may recover any unpaid amounts specified in a compliance cost notice as a debt in a court of competent jurisdiction.
If the person on whom a compliance cost notice is served complies with the notice but was not the person who was responsible for the situation giving rise to the issue of the notice, the cost of complying with the notice may be recovered by the person who complied with the notice as a debt in a court of competent jurisdiction from the person who was responsible.
The regulations may make provision for or with respect to the following:
(a) the issue of compliance cost notices,
(b) the form of compliance cost notices,
(c) limiting the amounts that may be required to be paid under compliance cost notices or the matters in respect of which costs and expenses may be required to be paid under those notices.
A person who gives a development control order may include 2 or more orders in the same instrument.
If appropriate in the circumstances of the case, a development control order may direct 2 or more people to do the thing specified in the order jointly.
If land, including land on which a building is erected, is owned or occupied by more than one person:
(a) a development control order in respect of the land or building is not invalid merely because it was not given to all of those owners or occupiers, and
(b) any of those owners or occupiers may comply with such a development control order without affecting the liability of the other owners or occupiers to pay for or contribute towards the cost of complying with the order.
Nothing in this Part affects the right of an owner or occupier to recover from any other person all or any of the expenses incurred by the owner or occupier in complying with such a development control order.
Insert in alphabetical order in section 4 (1):
Omit “and includes, in Division 2A of Part 6, in relation to a building, the owner of the building or the owner of the land on which the building is erected”.
Omit the definition. Insert instead:
Omit “an order under Division 2A of Part 6” from section 74C (1) (d).
Insert instead “a development control order”.
Omit “an order under Division 2A of Part 6” from paragraph (j) of the definition.
Insert instead “a development control order”.
Omit section 115ZF (4). Insert instead:
A development control order cannot be given in relation to critical State significant infrastructure.
Renumber and transfer the Part as Part 9 and renumber the sections in the Part (as amended by this Act) with decimal numbering commencing with section 9.1. Renumber Divisions 1 and 1AA as Division 9.1, Division 1C as Division 9.2, Division 2B as Division 9.4, Division 3 as Division 9.5 and Division 4 as Division 9.6. Amend any cross-references in the Act to the Part, the Divisions of the Part or sections accordingly.
Merge the Divisions into a single Division with the following heading:
Omit the section.
Omit the heading. Insert instead:
Omit section 119M (4). Insert at the end of the section:
Maximum penalty: Tier 3 monetary penalty.
Omit the Division. Transfer section 121 in the Division to Part 8 (Miscellaneous—renumbered as Part 10) as the second section of that Part numbered as section 10.2.
Omit the heading. Insert instead:
Omit “an order under Division 2A” from section 122 (b) (v).
Insert instead “a development control order”.
Omit section 122A (1) and (1A). Insert instead:
This Division applies to:
(a) the carrying out of State significant development that has development consent under Part 4, and
(b) the carrying out of State significant infrastructure approved under Division 5.2 of Part 5, and
(c) the carrying out of a project that was approved under Part 3A when that Part was in force or continued in operation.
In this Division, any such development, infrastructure or project is referred to as a project.
Omit “referred to in Division 4 of Part 3A”. Insert instead “referred to in Division 5.2”.
Omit section 122E (4). Insert at the end of the section:
Maximum penalty: Tier 3 monetary penalty.
Omit the heading. Insert instead:
Omit the heading. Insert instead:
Omit section 125 (1)–(3).
Omit “an order under Division 2A”. Insert instead “a development control order”.
Omit the sections. Insert instead (with appropriate decimal section numbers):
If
If
(a) in the case of a corporation:
(i) $5 million, and
(ii) for a continuing offence—a further $50,000 for each day the offence continues, or
(b) in the case of an individual:
(i) $1 million, and
(ii) for a continuing offence—a further $10,000 for each day the offence continues.
A Tier 1 maximum monetary penalty applies only if the prosecution establishes (to the criminal standard of proof):
(a) that the offence was committed intentionally, and
(b) that the offence:
(i) caused or was likely to cause significant harm to the environment, or
(ii) caused the death of or serious injury or illness to a person.
For the Tier 1 maximum monetary penalty to apply, the court attendance notice or application commencing the proceedings must allege that those factors apply to the commission of the offence.
If a Tier 1 maximum monetary penalty is specified in this Act but does not apply because of subsection (2), then a Tier 2 maximum penalty applies instead.
If a period of imprisonment is also specified, the person is also liable to imprisonment not exceeding the period so specified.
If
(a) in the case of a corporation:
(i) $2 million, and
(ii) for a continuing offence—a further $20,000 for each day the offence continues, or
(b) in the case of an individual:
(i) $500,000, and
(ii) for a continuing offence—a further $5,000 for each day the offence continues.
If a period of imprisonment is also specified, the person is also liable to imprisonment not exceeding the period so specified.
If
(a) in the case of a corporation:
(i) $1 million, and
(ii) for a continuing offence—a further $10,000 for each day the offence continues, or
(b) in the case of an individual:
(i) $250,000, and
(ii) for a continuing offence—a further $2,500 for each day the offence continues.
If a period of imprisonment is also specified, the person is also liable to imprisonment not exceeding the period so specified.
Section 10.13 provides that the regulations may create offences and impose a maximum monetary penalty for an offence against the regulations not exceeding $110,000.
Omit “A person is guilty of an offence under section 125 in connection with the obligations under this section only if the person fails to make a disclosure of a political donation or gift in accordance with this section” from section 147 (11).
Insert instead “A person is guilty of an offence against this section if the person fails to make a disclosure of a political donation or gift in accordance with this section”.
Omit “an order under Division 2A of Part 6” from section 148 (3) (d).
Insert instead “a development control order”.
Omit the subsection. Insert at the end of the section:
Maximum penalty: Tier 3 monetary penalty or imprisonment for 6 months, or both.
Omit the subsection. Insert at the end of section 148B (1):
Maximum penalty: Tier 3 monetary penalty.
Insert after section 157 (1):
The regulations may create offences punishable by a monetary penalty not exceeding $110,000.
Omit “fire safety” from section 157 (1) (d). Insert instead “fire and building safety”.
Omit the section. Insert instead (with appropriate decimal section numbers):
The regulations may contain provisions of a savings or transitional nature consequent on the enactment of any Act or instrument that amends this Act (whether before or after the commencement of this section).
Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later day.
To the extent to which any such provision takes effect from a date that is earlier than the date of its publication on the NSW legislation website, the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
Schedule 13 to the Environmental Planning and Assessment Amendment Act 2017 is taken to be and has effect as a regulation made under this Act.
Part 2 of the Subordinate Legislation Act 1989 does not apply to the regulation set out in that Schedule (but applies to any amendment or repeal of the regulation).
Part 3 of the Subordinate Legislation Act 1989 does not apply to the regulation set out in that Schedule or to any amendment or repeal of the regulation.
Sections 39, 40 and 41 of the Interpretation Act 1987 do not apply to the regulation set out in that Schedule (but apply to any amendment or repeal of the regulation).
Section 30C of the Interpretation Act 1987 applies to that Schedule as if it were an ancillary provision of the Environmental Planning and Assessment Amendment Act 2017. The repeal of that Schedule by the operation of section 30C does not affect the continued effect of the regulation set out in that Schedule.
Convert Part 7A to Schedule 6 to the Act (with the following heading); rename sections in the Part as clauses and renumber them commencing with clause 1; and rename and renumber any cross-references in the Act accordingly:
Renumber Part 8 as Part 10; renumber the sections in the Part (as amended by this Act) with decimal numbering commencing with section 10.1; and renumber any cross-references in the Act accordingly.
Omit the section.
Re-number the Schedule as Schedule 7.
Renumber Schedule 5A as Schedule 4.
Renumber any cross-references accordingly.
Omit the Schedule and transfer it (except for Part 1) to the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 as Schedule 1 (with the heading set out in that Regulation); convert any reference in the Schedule to “this Act” to a reference to “the Act”.
Omit the Schedule and transfer it to the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 as Schedule 2 (with the heading set out in that Regulation); convert any reference in the Schedule to “this Act” to a reference to “the Act”.
Re-number as Schedule 8. Omit Parts 1, 2 and 3 of the Schedule and transfer them to the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 as Parts of Schedule 3 (with the heading set out in that Regulation).
Insert in alphabetical order in section 3 (1):
Omit the definition of
Omit section 11 (3) (c), (f) and (g). Insert instead:
a Sydney district planning panel constituted under Part 2 of the Planning Act,
a regional planning panel constituted under Part 2 of the Planning Act,
a local planning panel constituted under Part 2 of the Planning Act,
the Independent Planning Commission constituted under Part 2 of the Planning Act,
Omit the Part.
Omit the Schedule.
Heritage Act 1977 No 136Omit “Planning Assessment Commission” wherever occurring.
Insert instead “Independent Planning Commission”.
Independent Commission Against Corruption Act 1988 No 35Omit section 74C (3C). Insert instead:
The Commission is authorised to include in a report under section 74 a recommendation that consideration be given to the removal from office under the Environmental Planning and Assessment Act 1979 of a member of the Independent Planning Commission, of a Sydney district or regional planning panel or of a local planning panel because of corrupt conduct by the member.
Omit section 39 (6A).
Omit the section.
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008Insert after clause 1.16 (1) (b):
must not be carried out on land that is a declared area of outstanding biodiversity value under the Biodiversity Conservation Act 2016 or declared critical habitat under Part 7A of the Fisheries Management Act 1994, and
must not be carried out on land that is, or is part of, a wilderness area (within the meaning of Wilderness Act 1987), and
Omit the clause. Insert instead:
The Independent Planning Commission is to constitute a subcommittee of the Commission as the Mining and Petroleum Gateway Panel.
The Commission must consult with the Minister for Planning, the Minister for Resources, Minister for Energy and Utilities and the Minister for Primary Industries on the proposed membership of the Gateway Panel.
Omit the clause. Insert instead:
The Gateway Panel is to consist of not less than 3 persons appointed by the Independent Planning Commission. A member of the Commission may be appointed as a member of the Gateway Panel.
A person is qualified for appointment as a member of the Gateway Panel if the person has expertise in any one or more of the disciplines of agricultural science, hydrogeology or mining and petroleum development.
In appointing the members of the Gateway Panel, the Commission is to ensure, as far as practicable, that the members have expertise in a mix of the disciplines referred to in subclause (2).
One of the members of the Gateway Panel is, by the member’s instrument of appointment or a further instrument signed by the Commission, to be appointed as the chairperson of the Panel.
Omit “Minister” wherever occurring. Insert instead “Independent Planning Commission”.
Omit “Minister”. Insert instead “Independent Planning Commission”.
Statutory and Other Offices Remuneration Act 1975 (1976 No 4)Omit “Planning Assessment Commission”.
Insert instead “Independent Planning Commission”.
Subordinate Legislation Act 1989 No 146Insert at the end of the Schedule:
The Environmental Planning and Assessment Regulation 2000 remains in force until 1 September 2020, unless sooner repealed.
The following Acts are repealed:
• Environmental Planning and Assessment Amendment Act 2008 No 36
• Environmental Planning and Assessment Amendment (Part 3A Repeal) Act 2011 No 22
• Local Government and Environmental Planning and Assessment Amendment (Transfer of Functions) Act 2001 No 93
• Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 No 205
This Regulation is the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017.
This Regulation commences on the commencement of Schedule 13 to the Environmental Planning and Assessment Amendment Act 2017.
See section 10.16 of the Act for provisions relating to the making of this Regulation and the application to this Regulation of provisions of the Interpretation Act 1987 and the Subordinate Legislation Act 1989.
In this Regulation:
The Act and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this Regulation.
Notes included in this Regulation do not form part of this Regulation.
In this Part:
The provisions of Schedules 1, 2 and 3 are, to the extent that as a result of the amending Act they re-enact provisions of the Act, transferred provisions to which section 30A of the Interpretation Act 1987 applies.
The Planning Ministerial Corporation constituted under this Act is taken for all purposes, including the rules of private international law, to be a continuation of, and the same legal entity as, the corporation constituted as the “Minister administering the Environmental Planning and Assessment Act 1979” under section 8 of the Act immediately before the repeal of that section by the amending Act.
Without limiting the operation of this clause, the assets, rights and liabilities of the corporation so constituted are the assets, rights and liabilities of the Planning Ministerial Corporation.
The Independent Planning Commission constituted under the Act is taken for all purposes, including the rules of private international law, to be a continuation of, and the same legal entity as, the Planning Assessment Commission established under section 23B of the Act immediately before the repeal of that section by the amending Act.
Without limiting the operation of this clause, the assets, rights and liabilities of the Planning Assessment Commission are the assets, rights and liabilities of the Independent Planning Commission constituted under the Act.
A person holding office as a member of the Planning Assessment Commission immediately before the commencement of this clause is taken to have been appointed as a member of the Independent Planning Commission for the balance of the member’s term of office under the Act.
A determination (or purported determination) by the chairperson of the Planning Assessment Commission before the commencement of this clause for the Commission to be constituted by more or fewer than 3 members for the purposes of exercising its functions with respect to a particular matter is taken to be, and always to have been, valid.
A person holding office as a member of a Sydney planning panel (including a council nominee) under Part 3 of the Greater Sydney Commission Act 2015 immediately before the commencement of this clause is taken to have been appointed or nominated as a member of the corresponding Sydney district planning panel established under the Act for the balance of the person’s term of office.
A reference in this clause to a member includes a reference to an alternate of a member appointed under the Greater Sydney Commission Act 2015.
A person holding office as a member of a joint regional planning panel (including a council nominee) under section 23G of, and Schedule 4 to, the Act immediately before the commencement of this clause is taken to have been appointed or nominated as a member of the corresponding regional planning panel established under the Act for the balance of the person’s term of office.
A reference in this clause to a member includes a reference to an alternate of a member appointed under the Act.
A person holding office as a member of a local planning panel under section 23K immediately before the commencement of this clause is taken to have been appointed by the applicable council as a member of a local planning panel under the Act for the balance of the person’s term of office.
A reference in this clause to a member includes a reference to an alternate of a member appointed under the Act.
A delegation of a function under section 23 of the Act (as in force before the repeal of that section by the amending Act) is, on that repeal, taken to be a delegation of that function under section 2.4 of the Act.
A provision of the Act inserted by the amending Act that provides for the registration of a development consent or other approval on the NSW planning portal is taken, until the planning portal provides a facility for that registration, to provide for the notification of the consent or approval to the applicant for the consent or approval.
A reference in any Act or statutory or other instrument under an Act, or in any contract or agreement, to Part 5 or Part 5.1 of the Act is, on and after the amendment of that Part by the amending Act, to be read as a reference to Division 5.1 or Division 5.2, respectively, of Part 5 of the Act.
This clause does not apply to any such reference in the Act or this Regulation and is subject to any contrary intention in the provision in which the reference occurs.
A certificate that was issued under Part 4A of the Act (as in force immediately before the repeal of that Part) and that continues to have effect is taken to be a corresponding certificate issued under Part 6 of the Act.
Part 4A of the Act (as in force immediately before the repeal of that Part) continues to apply to an application for a certificate under that Part pending on the repeal of that Part. Subclause (1) extends to a certificate issued on the determination of any such application.
Schedule 10 to the Environmental Planning and Assessment Amendment Act 2017 provides that Schedule 6 to the Act is omitted from the Act and transferred to this Regulation as Schedule 1. The provisions will be incorporated into this Regulation on the NSW Legislation website when that amending Act commences.
Schedule 10 to the Environmental Planning and Assessment Amendment Act 2017 provides that Schedule 6A to the Act is omitted from the Act and transferred to this Regulation as Schedule 2. The provisions will be incorporated into this Regulation on the NSW Legislation website when that amending Act commences.
Schedule 10 to the Environmental Planning and Assessment Amendment Act 2017 provides that Parts 1, 2 and 3 of Schedule 7 to the Act is omitted from the Act and transferred to this Regulation as Schedule 3. The provisions will be incorporated into this Regulation on the NSW Legislation website when that amending Act commences.
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