Environmental Planning and Assessment Amendment (Complying Development and Fire Safety) Regulation 2013 (NSW)
2013 No 705
New South Wales
Environmental Planning and
Assessment Amendment (Complying
Development and Fire Safety)
Regulation 2013
under the
Environmental Planning and Assessment Act 1979
Her Excellency the Governor, with the advice of the Executive Council, has made the following Regulation under the Environmental Planning and Assessment Act 1979.
BRAD HAZZARD, MP
Minister for Planning and Infrastructure
Explanatory note
The object of this Regulation is to amend the Environmental Planning and Assessment
Regulation 2000:
| (a) | to make it clear that prescribed conditions of development consents and complying development certificates relating to shoring and adequacy of support of premises adjoining the development extend to adjoining structures on land in a road or rail corridor, and |
| (b) | to require a certifying authority, before determining an application for a complying development certificate by issuing a certificate, to give a notice in certain circumstances containing specified information to the occupier of each dwelling within 20 metres of the development, and |
| (c) | to require a complying development certificate to be issued subject to a condition requiring payment of a contribution or levy under section 94 or 94A of the Environmental Planning and Assessment Act 1979 if the contributions plan for the local government area requires payment of a contribution or levy for the type of development the certificate relates, to despite any provision to the contrary in that plan, and |
| (d) | to require a complying development certificate that is issued subject to a condition that a contribution or levy be paid under section 94 or 94A of the Environmental Planning and Assessment Act 1979 to also be issued subject to a condition as to when the contribution or levy is to be paid, and |
| (e) | to provide for the payment of security deposits to councils as a condition of a complying development certificate in certain circumstances, and |
| Published LW 20 December 2013 | Page 1 |
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Environmental Planning and Assessment Amendment (Complying Development and Fire
Safety) Regulation 2013
Explanatory note
| (f) | to place a duty on a principal certifying authority for complying development to be satisfied that preconditions to which the certificate is subject have been met before work commences, and |
| (g) | to require a person having the benefit of a complying development certificate to include in the prescribed notice of commencement of work to be given to the council (and the principal certifying authority if that is not the council) a statement signed by or on behalf of the principal certifying authority to the effect that the preconditions to which the certificate is subject have been met, and |
| (h) | to require an application for certain complying development to be accompanied by a certificate from Roads and Maritime Services in relation to traffic generating aspects of the development, and |
(i) to require an application for complying development to contain certain information about the contamination status of the land concerned and be accompanied by a certificate from a qualified expert in relation to the development, and
| (j) | to remove the requirement for a fire safety schedule where work is limited to the alteration of a hydraulic fire safety system (being a fire hydrant system, fire hose reel system, hydraulic automatic fire suppression system or sprinkler system, including a wall-wetting or drencher system) that does not affect the fire protection of that system and there has been notice of specified action by or on behalf of a water utility in relation to the relevant premises, and |
| (k) | to require applications for certain complying development to be accompanied by a report relating to fire safety from an independent accredited certifier, except in specified circumstances, and |
| (l) | to require any such report to be provided to the relevant council if the council is not the certifying authority, and |
| (m) | to remove obsolete provisions relating to fire link conversions. |
This Regulation is made under the Environmental Planning and Assessment Act 1979, including sections 80A (11), 81A (5), 85A (6), 94 EC (3), 105, 109E (4), 109H (5) (d) and (6) (c) and 157 (the general regulation-making power).
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| Development and Fire Safety) Regulation 2013 | Clause 1 |
Environmental Planning and Assessment Amendment
(Complying Development and Fire Safety) Regulation
2013
under the
Environmental Planning and Assessment Act 1979
1 Name of Regulation
This Regulation is the Environmental Planning and Assessment Amendment (Complying Development and Fire Safety) Regulation 2013.
2 Commencement
This Regulation commences on 22 February 2014 and is required to be published on the NSW legislation website.
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| Schedule 1 | Amendment of Environmental Planning and Assessment Regulation 2000 |
| Schedule 1 | Amendment of Environmental Planning and Assessment Regulation 2000 |
[1] Clause 3 Definitions
Omit “relays” from the definition of fire alarm communication link in clause 3 (1).
Insert instead “transmits”.
[2] Clause 3 (1)
Insert in alphabetical order:
fire alarm communication link works means the installation or conversion of a fire alarm communication link to connect with the fire alarm monitoring network of a private service provider, but does not include works that are associated with the alteration, enlargement, extension or change of use of an existing building.
[3] Clause 3 (1), definition of “Fire Commissioner”
Omit “New South Wales Fire Brigades”.
Insert instead “Fire and Rescue NSW”.[4] Clause 3 (1), definitions of “fire link conversion” and “fire link conversion schedule”
Omit the definitions.
[5] Clause 3 (1), definition of “fire safety schedule”
Omit “, 168A (2) (b)”.
[6] Clause 3 (1), definition of “private service provider”
Omit “the New South Wales Fire Brigades”.
Insert instead “Fire and Rescue NSW”.[7] Clause 27 What particulars must a contributions plan contain?
Insert after clause 27 (1):
(1A)
Despite subclause (1) (g), a contributions plan made after the commencement of this subclause that makes provision for the imposition of conditions under section 94 or 94A of the Act in relation to the issue of a complying development certificate must provide that the payment of monetary section 94 contributions and section 94A levies in accordance with those conditions is to
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be made before the commencement of any building work or
subdivision work authorised by the certificate.Note. Clause 136K imposes a condition on a complying development certificate in relation to the timing of payment of monetary section 94 contributions and section 94A levies.
[8] Clause 98E Condition relating to shoring and adequacy of adjoining property
Insert “, structure or work (including any structure or work within a road or rail corridor)” after “building” in clause 98E (1).
[9] Clause 98E (1) (a) and (b)
Omit “adjoining premises” wherever occurring.
Insert instead “building, structure or work”.[10] Clause 129B Restriction on issue of complying development certificate
Insert at the end of the clause:
(2) Subclause (1) does not apply in respect of a complying development certificate that relates only to fire alarm communication link works.
[11] Clauses 130AA and 130AB
Omit clause 130AA. Insert instead:
| 130AA | Time limit for determining application for complying development certificate |
For the purposes of section 85A (8) of the Act, the period prescribed by the regulations is:
(a)
for development that requires a notice to be given under clause 130AB—20 days, or
(b) in any other case—10 days.
| 130AB | Requirement to advise of applications for certain complying development certificates | |
|
(a)
development specified under any environmental planning instrument that involves any of the following:
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(i) a new dwelling,
(ii) an addition to an existing dwelling,
(b)
development specified in Part 7 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the Demolition Code),
(c)
development specified in Division 2 or 7 of Part 2 of State Environmental Planning Policy (Affordable Rental Housing) 2009.
(2)
A certifying authority for an application for a complying development certificate to which this clause applies must not determine the application by issuing a complying development certificate until at least 14 days after the certifying authority has given a notice that complies with this clause to:
(a)
if the development will be on land in a rural or residential zone—the occupier of each dwelling referred to in subclause (1) that is on land in a rural or residential zone, and
(b)
if the certifying authority is not the council for the area in which the development is to be carried out—the council.
(3) The notice must be in writing and must include the following:
(a) the name and contact details of the certifying authority, (b)
a statement that the certifying authority has received an application for a complying development certificate and will determine the application in accordance with the Environmental Planning and Assessment Act 1979,
(c)
the name of the applicant for the complying development certificate,
(d)
the address of the land on which the development is to be carried out,
(e)
a description of the development to which the application relates,
(f)
the date on which the application was received by the certifying authority,
(g)
a statement that, once the application is determined, the council is required to make a copy of the determination available for inspection.
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(4) In this clause:
residential release area means any land within:
(a) an urban release area identified within a local environmental plan that has been prepared under the Standard Instrument (Local Environmental Plans) Order 2006 and made as provided by section 33A (2) of the Act, or (b) a land release area identified under the Eurobodalla Local Environmental Plan 2012, or (c) any land subject to State Environmental Planning Policy (Sydney Region Growth Centres) 2006, or (d) any area included in Parts 6, 26, 27, 28 and 29 of Schedule 3 to State Environmental Planning Policy (Major Development) 2005.
[12] Clause 130 Procedure for determining application for complying development certificate and notification requirements
Omit “or fire link conversion schedule” from clause 130 (4) (c).
[13] Clause 130 (4)
Insert at the end of clause 130 (4) (d):
, and
(e) any report required by clause 132A (2) that accompanied the application for the complying development certificate.
[14] Clause 132A
Insert after clause 132:
| 132A | Additional requirements in relation to fire safety | |
|
(a) clause 131 or 132 applies to the development, and (b)
the existing building to which the development relates was erected before 1 January 1993, and
(c)
the development involves an area of more than 500 square metres.
(2)
The application for the complying development certificate is to be accompanied by a report from an independent accredited certifier that:
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(a)
considers the requirements of any order relating to fire safety that has been issued under section 121B of the Act in relation to the existing building, and
(b)
contains details of the extent to which the existing building does or does not comply with the deemed-to-satisfy provisions of Sections C, D and E of the Building Code of Australia (as in force at the time the application is made), and
(c)
provides an assessment of, and makes recommendations regarding, whether it would be appropriate to require the existing building to be brought into total or partial conformity with the Building Code of Australia, and
(d)
contains recommendations with respect to the work (if any) required to ensure that the measures contained in the existing building, including any modifications to be made by the development, are appropriate:
(i)
to protect persons using the building and to facilitate their egress from the building in the event of a fire, and
(ii)
to restrict the spread of fire from the building to other buildings nearby, and
(e)
identifies what work (if any) must be done before or at the same time as the development is carried out, and what work should be done as part of an on-going strategy, to achieve the recommendations contained in the report.
(3)
Subclause (2) does not apply if the council or the accredited certifier determining the application for the complying development certificate is satisfied that the existing building has been upgraded so as to bring it into partial or total conformity with the fire protection and fire resistance requirements of Sections B, C, D, E and G of the Building Code of Australia in accordance with:
(a)
an order under section 121B of the Act relating to fire safety, or
(b) a development consent, or (c) a complying development certificate. (4) In this clause, independent accredited certifier means an
accredited certifier under the Building Professionals Act 2005:
(a)
who is accredited as a Category A1, accredited certifier, building surveying grade 1, and
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(b) whose certificate of accreditation authorises the accredited certifier to issue a complying development certificate in relation to the fire safety measures contained in the existing building concerned, including any modifications to be made by the development, and (c) who is not determining the application for the relevant complying development certificate or employed or engaged by an accredited body corporate that is determining the application.
[15] Clause 134 Form of complying development certificate
Insert “(if a fire safety schedule is required under Part 9)” after “the building” in clause 134 (2).
[16] Clause 134 (3) (b) and note
Omit the paragraph and note.
[17] Clause 136 Notice under section 86 of the Act of intention to commence subdivision work or erection of building
Insert after clause 136 (e):
(f) a statement signed by or on behalf of the principal certifying authority to the effect that all conditions of the relevant complying development certificate that are required to be satisfied before the work commences have been satisfied,
[18] Clause 136AB
Insert after clause 136A:
| 136AB | Notice to neighbours | |
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(a) a new building, or (b) an addition to an existing building, or (c) the demolition of a building, must be issued subject to a condition that the person having the benefit of the complying development certificate must give at least 7 days’ notice in writing of the person’s intention to commence the work authorised by the certificate to the occupier of each dwelling that is located on a lot that has a boundary within 20 metres of the boundary of the lot on which the work is to be carried out.
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(2) A complying development certificate for development on land
that is in a residential release area and that involves:
(a) a new building, or (b) an addition to an existing building, or (c) the demolition of a building, must be issued subject to a condition that the person having the benefit of the complying development certificate must give at least 2 days’ notice in writing of the person’s intention to commence the work authorised by the certificate to the occupier of each dwelling that is located on a lot that has a boundary within 20 metres of the boundary of the lot on which the work is to be carried out. (3) In this clause:
residential release area means any land within:
(a) an urban release area identified within a local environmental plan that has been prepared under the Standard Instrument (Local Environmental Plans) Order 2006 and made as provided by section 33A (2) of the Act, or (b) a land release area identified under the Eurobodalla Local Environmental Plan 2012, or (c) any land subject to State Environmental Planning Policy (Sydney Region Growth Centres) 2006, or (d) any area included in Parts 6, 26, 27, 28 and 29 of Schedule 3 to State Environmental Planning Policy (Major Development) 2005.
[19] Clause 136H Condition relating to shoring and adequacy of adjoining property
Insert “, structure or work (including any structure or work within a road or rail corridor)” after “building” in clause 136H (1).
[20] Clause 136H (1) (a) and (b)
Omit “adjoining premises” wherever occurring.
Insert instead “building, structure or work”.
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[21] Clauses 136I–136N
Insert after clause 136H:
136I Traffic generating development If an application for a complying development certificate is required to be accompanied by a certificate of Roads and Maritime Services as referred to in clause 4 (1) (k) of Schedule 1, the complying development certificate must be issued subject to a condition that any requirements specified in the certificate of Roads and Maritime Services must be complied with.
| 136J | Development on contaminated land | |||||
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| 136K | When complying development certificates must be subject to section 85A (9) condition | |||||
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| 136L | Contributions and levies payable under section 85A (9) must be paid before work commences | |||||
| (1) A complying development certificate issued subject to a condition required by section 85A (9) of the Act must be issued subject to a condition that the contribution or levy must be paid before any work authorised by the certificate commences. | ||||||
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| 136M | Condition relating to payment of security | |||||
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(a)
the development is a new building or an addition to an existing building and the estimated cost of the development (as specified in the application for the certificate) is $25,000 or more, and
(b)
the development is to be carried out on land adjacent to a public road, and
(c)
at the time the application for the certificate is made, there is specified on the website of the council for the area in which the development is to be carried out an amount of security determined by the council that must be paid in relation to:
(i) development of the same type or description, or (ii)
development carried out in the same circumstances, or
(iii)
development carried out on land of the same size or description.
(2)
A complying development certificate to which this clause applies must be issued subject to a condition that the amount of security referred to in subclause (1) is to be provided, in accordance with this clause, to the council before any building work or subdivision work authorised by the certificate commences.
(3) The security may be provided, at the applicant’s choice, by way of:
(a) deposit with the council, or (b) a guarantee satisfactory to the council. (4)
The funds realised from a security may be paid out to meet the cost of making good any damage caused to any property of the council as a consequence of doing anything (or not doing
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anything) authorised or required by the complying development certificate, including the cost of any inspection to determine whether damage has been caused.
(5)
Any balance of the funds realised from a security remaining after meeting the costs referred to in subclause (4) is to be refunded to, or at the direction of, the person who provided the security.
| 136N | Principal certifying authority to be satisfied that preconditions met before commencement of work | |||
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[22] Clause 142 Procedure for determining application for construction certificate
Omit “or fire link conversion schedule” from clause 142 (2) (d).
[23] Clause 147 Form of construction certificate
Insert “(if a fire safety schedule is required under Part 9)” after “the building” in clause 147 (2).
[24] Clause 147 (3)
Omit the subclause (including the note following that subclause).
Insert instead:
(3) Subclause (2) does not apply to a class 1a or class 10 building
within the meaning of clause 167.
[25] Clause 153 Fire safety certificates: section 109H
Insert “(if a fire safety schedule is required under Part 9)” after “the building” in clause 153 (1).
[26] Clause 153 (1A)
Omit the subclause.
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[27] Clause 154D
Insert after clause 154C:
| 154D | Restriction on issue of occupation certificate |
If a copy of a report is required to be provided to a council under clause 130 (4) (e) in respect of development the subject of a complying development certificate, a certifying authority must not issue an occupation certificate for the development unless the certifying authority has received an acknowledgement of receipt of the copy of the report from the council.
[28] Clause 155 Form of occupation certificate
Insert “(if a fire safety schedule is required under Part 9)” after “the building” in clause 155 (1) (e) (v).
[29] Clause 155 (2)
Omit clause 155 (2)–(4) (including the note). Insert instead:
(2) The occupation certificate must be accompanied by a fire safety certificate and a fire safety schedule for the building (if a fire safety schedule is required under Part 9).
[30] Clause 165 Definitions
Insert “and Schedule 1” after “this Part”.
[31] Clause 165
Insert in alphabetical order:
alteration to a hydraulic fire safety system means a permanent alteration to a hydraulic fire safety system that modifies or enables the modification of the pressure or flow characteristics of the hydraulic fire safety system and that is not associated with:
(a)
an alteration, enlargement or extension of an existing building, unless the alteration, enlargement or extension relates solely and directly to the alteration to the hydraulic fire safety system, or
(b) a change of use of a building. hydraulic fire safety system means:
(a) a fire hydrant system, or (b) a fire hose reel system, or (c)
a sprinkler system (including a wall-wetting sprinkler or drencher system), or
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(d) any type of automatic fire suppression system of a hydraulic nature, that is installed in accordance with a requirement of, or under, the Act or any other Act or law (including an order or a condition of an approval or some other sort of authorisation).
[32] Clause 165, definition of “critical fire safety measure”
Omit “or fire link conversion schedule”.
[33] Clause 166 Statutory fire safety measures
Omit “Hose reel systems” from the Table to the clause.
Insert in alphabetical order “Fire hose reel systems”.[34] Clause 168 Fire safety schedules
Omit “(other than a certificate that relates only to fire link conversion)” wherever occurring in clause 168 (1) (b) and (c).
[35] Clause 168 (2A)
Insert after subclause (2):
(2A) Despite subclause (1) (b), (c) and (d), a fire safety schedule is not
required to be issued if:
(a) the work for which a complying development certificate or construction certificate is to be issued relates only to: (i) an alteration to a hydraulic fire safety system, or
(ii) the installation of a fixed on-site pumpset and the construction of a new external pumphouse to accommodate that pumpset, and
(b) the carrying out of that work does not result in a permanent reduction of the fire protection provided by the existing hydraulic fire safety system that will be the subject of that work, and (c) there is notice, in respect of the premises on which the works are to be carried out, of a past, current or proposed action by or on behalf of a water utility to install mains pressure reduction capability or to implement mains pressure reduction. Note. Pursuant to clause 167, a fire safety schedule is also not required in relation to a class 1a building, a class 10 building or a temporary structure.
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[36] Clause 168A Conversion of fire alarm communication links
Omit the clause.
[37] Clause 170 What is a final fire safety certificate?
Omit “Under clause 153 (1A), a final fire safety certificate that relates solely to a final occupation certificate for fire link conversion need only deal with the new fire alarm communication link and not with other essential fire safety measures.” from the note to clause 170.
[38] Clause 267 Council to keep certain documents relating to complying development certificates
Insert after clause 267 (i):
(j) a copy of each notice given to, or given by, the council under clause 130AB.
[39] Clause 291 Savings and transitional provisions
Insert after clause 291 (4):
(5) Any requirement to issue a fire safety schedule that arose under clause 168 before its amendment by the Environmental Planning and Assessment Amendment (Complying Development and Fire Safety) Regulation 2013 continues to apply as if that Regulation had not been made.
[40] Schedule 1 Forms
Insert after clause 3 (h):
(i) in the case of development for the purposes of a new building, or the alteration of or addition to an existing building, to which Part 5A of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 applies, whether the land on which the development is to be carried out:
(i)
is used, or was formerly used, for a purpose listed in Table 1 to clause 3.2.1 of the document entitled Managing Land Contamination Planning Guidelines, SEPP 55—Remediation of Land and published in 1998 by the Department of Urban Affairs and Planning and the Environment Protection Authority, or
(ii)
is on the list of sites notified under section 60 of the Contaminated Land Management Act 1997.
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[41] Schedule 1, clauses 4 (1) (c) and 6 (1) (b)
Omit “or work that relates only to fire link conversion” wherever occurring.
[42] Schedule 1, clause 4 (1) (k)–(m)
Insert after clause 4 (1) (j):
(k)
a certificate issued by Roads and Maritime Services certifying that any impacts on the surrounding road network as a result of the development are acceptable or will be acceptable if specified requirements are met, but only in a case where:
(i)
the development is for the purposes of a new building, or the alteration of or addition to an existing building, to which Part 5A of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 applies, and
(ii)
the total gross floor area of the new building or the existing building as altered or added to will be 5,000 square metres or more, and
(iii)
the site on which the development is to be carried out has direct vehicular or pedestrian access to a classified road or to a road that connects to a classified road where the access (measured along the alignment of the connecting road) is within 90 metres of the connection,
(l)
if the development is proposed to be carried out on land referred to in clause 3 (i) of this Schedule, a statement issued by a qualified person certifying that:
(i)
the land is suitable for the intended purpose of the development having regard to the contamination status of the land, or
(ii)
the land would be so suitable if the remediation works specified in the statement were carried out,
(m)
if a development standard applying to the development requires that development must be set back from any registered easement:
(i)
a copy of the certificate of title for the lot on which the development is to be carried out, and
(ii)
if the land is subject to a registered easement—a title diagram for the lot and any adjoining lot that benefits from the easement.
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[43] Schedule 1, clause 4 (5A) and (5B)
Omit clause 4 (5A). Insert instead:
(5A) An application for a complying development certificate that relates only to fire alarm communication link work must be accompanied by:
(a) a plan that indicates the location of the new fire alarm communication link and any associated works, and (b) a document that describes the design, construction and mode of operation of the new fire alarm communication link and any associated works. (5B) An application for a complying development certificate that relates only to an alteration to a hydraulic fire safety system must be accompanied by:
(a) a plan that indicates the location of the hydraulic fire safety system alteration and any associated works, and (b) a document that describes: (i) the required pressure and flow characteristics of the hydraulic fire safety system that is to be altered, and
(ii) the pressure and flow characteristics that will be available from the town main following mains pressure reduction by or on behalf of the relevant water utility, and
(iii) the design, construction and performance of the hydraulic fire safety system alteration and any associated works.
[44] Schedule 1, clause 4 (7)
Insert after clause 4 (6):
(7)
In subclause (1) (l), qualified person means a person who has the competencies that are essential to contaminated site assessment and investigation as set out in the document entitled Schedule B9 Guideline on Competencies and Acceptance of Environmental Auditors and Related Professionals published by the National Environment Protection Council in 2013.
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[45] Schedule 1, clause 4B
Insert after clause 4A:
4B Relationship with State Environmental Planning Policy (Port
Botany and Port Kembla) 2013Clauses 3 (i) and 4 (1) (l) of this Schedule do not apply to complying development carried out under the complying development provisions of State Environmental Planning Policy (Port Botany and Port Kembla) 2013 in the Lease Area within the meaning of clause 4 of that Policy.
[46] Schedule 1, clause 6 (3A) and (3B)
Omit clause 6 (3A). Insert instead:
(3A) An application for a construction certificate that relates only to
fire alarm communication link works must be accompanied by:
(a) a plan that indicates the location of the new fire alarm communication link and any associated works, and (b) a document that describes the design, construction and mode of operation of the new fire alarm communication link and describes any associated works. (3B) An application for a construction certificate that relates only to an alteration to a hydraulic fire safety system must be accompanied by:
(a) a plan that indicates the location of the hydraulic fire safety system alteration and any associated works, and (b) a document that describes: (i) the required pressure and flow characteristics of the hydraulic fire safety system that is to be altered, and
(ii) the pressure and flow characteristics that will be available from the town main following mains pressure reduction by or on behalf of the relevant water utility, and
(iii) the design, construction and performance of the hydraulic fire safety system alteration and any associated works.
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[47] Schedule 4 Planning certificates
Omit clause 3. Insert instead:
3 Complying development
(1) The extent to which the land is land on which complying development may be carried out under each of the codes for complying development because of the provisions of clauses 1.17A (1) (c) to (e), (2), (3) and (4) and 1.19 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008. (2) The extent to which complying development may not be carried out on that land because of the provisions of clauses 1.17A (1) (c) to (e), (2), (3) and (4) and 1.19 of that Policy and the reasons why it may not be carried out under those clauses. (3) If the council does not have sufficient information to ascertain the extent to which complying development may or may not be carried out on the land, a statement that a restriction applies to the land, but it may not apply to all of the land, and that council does not have sufficient information to ascertain the extent to which complying development may or may not be carried out on the land.
[48] Schedule 7 Savings and transitional provisions
Insert after clause 31:
Part 6 Provision consequent on making of
Environmental Planning and Assessment
Amendment (Complying Development and
Fire Safety) Regulation 2013
32 General savings This Regulation, as in force immediately before its amendment by Environmental Planning and Assessment Amendment (Complying Development and Fire Safety) Regulation 2013, continues to apply to the determination of all applications for complying development certificates or construction certificates made, but not finally determined, before the commencement of the amending Regulation.
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