Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.

The Building Professionals Amendment Bill 2008 and the Strata Management
Legislation Amendment Bill 2008 are cognate with this Bill.

Overview of Bill

The object of this Bill is to reform the planning system, and for that purpose to amend
the Environmental Planning and Assessment Act 1979 (the EPA Act) and other Acts
and instruments.

Environmental planning
The environmental planning reforms in Schedule 1 to the Bill seek to simplify and
provide flexibility to the plan-making process, while retaining community and
related consultation procedures. In particular, the reforms:

(a) make provision for a gateway determination at an early stage of the process so
that early decisions are made on whether a planning proposal will proceed, on
the detailed community and other consultation required, on the time-frames
for further stages of the process and on whether the final making of the plan
can be delegated to the council, Director-General or other relevant planning
authority, and

(b) require explanations and justifications for planning proposals for gateway
determination and consultation purposes, rather than technical legally drafted
documents, and

(c) enable comprehensive and other major plans to be provided with more detailed
community and agency consultation than minor plans, and

(d) enable independent advice to be obtained to deal with planning proposals that
have stalled, and

(e) place on a permanent footing in the EPA Act provisions contained in a
regional environmental plan to prevent development consent being granted in
Sydney hydrological drinking water catchment unless it has a neutral or
beneficial effect on the quality of water, and

(f) make other amendments to simplify and improve the plan-making process.

Development assessment
The objects of the development assessment reforms in Schedule 2 to the Bill are as
follows:

(a) to establish the Planning Assessment Commission (the PAC) and to give the
PAC approval and planning functions relating to projects under Part 3A of the
EPA Act and other planning, development consent, advisory and review
functions,

(b) to enable the establishment of joint regional planning panels (regional panels)
and to enable them to be given planning and development consent functions
for parts of the State, the planning and other functions of councils whose
functions are removed under the EPA Act and other development consent,
advisory and review functions,

(c) to enable councils to appoint independent hearing and assessment panels to
advise them about development applications and other planning matters,

(d) to provide a right for applicants to seek reviews by planning arbitrators of
determinations by councils relating to certain development applications and
development consents (planning arbitrator matters) and to provide for a new
third party right to seek a review of development determinations about certain
residential and commercial and mixed use developments,

(e) to restrict appeals to the Land and Environment Court relating to planning
arbitrator matters unless they have been reviewed by a planning arbitrator or
the council consents to the appeal being made and to generally reduce the
period for making an appeal to that Court in a development assessment matter
from 12 months to 3 months,

(f) to re-enact the current limitations on the power of consent authorities to refuse
or impose conditions on Crown developments, with certain procedural
changes, and confer on regional panels power to determine disputes about
council determinations about Crown developments,

(g) to enable development consents relating to extended hours of operation of
certain premises to be subject to later review and change,

(h) to add to the council functions that may be removed from councils for
misconduct reasons and exercised by a planning administrator, planning
assessment panel or regional panel,
        (i) to prevent administrative law and other proceedings being taken in respect of
the exercise by the Minister of certain functions relating to the appointment of
planning administrators or planning assessment panels or conferral on regional
panels of certain council functions,

(j) to require the Director-General of the Department of Planning to consult
public authorities on environmental assessment requirements for projects
under Part 3A of the EPA Act only if required to do so by applicable
guidelines,

(k) to enable the Independent Commission Against Corruption to recommend the
removal from office of members of the PAC or regional panels and planning
arbitrators on corruption grounds,

(l) to apply the provisions of the Ombudsman Act 1974 to planning arbitrators,

(m) to make other amendments relating to development assessment, development
consents and complying development.

Development contributions
Schedule 3 to the Bill replaces existing provisions of the EPA Act for development
contributions with a new Part 5B that provides for community infrastructure
contributions, State infrastructure contributions, planning agreements and
development contributions for affordable housing.

Significant features of the new provisions are as follows:

(a) local infrastructure contributions (currently known as section 94 and 94A
contributions) will be replaced by community infrastructure contributions,

(b) local councils will be limited to community infrastructure contributions for
key community infrastructure (as prescribed by the regulations) and any
additional community infrastructure approved for the council by the Minister,
with provision for a council seeking such an approval to provide the Minister
with a business plan and independent report in support of the application,

(c) councils, the Minister and other planning authorities will be required to have
regard to specified key considerations for development contributions,
including affordability, in relation to community infrastructure contributions,
State infrastructure contributions and planning agreements,

(d) the Minister will be able to give directions as to the time within which
community infrastructure contributions must be applied,

(e) the regulations will be able to impose requirements for reporting by planning
authorities about the determination, collection, application and use of
development contributions and the provision of public infrastructure by them,

(f) transitional provisions will revoke all existing contributions plans on 31
March 2010, with provision for the Minister to remake existing contributions
plans on behalf of councils to cover contributions for infrastructure that is not
key community infrastructure when there are binding arrangements in place
for the provision of the infrastructure concerned,

(g) a Community Infrastructure Trust Fund is established under the control of the
Treasurer to fund the provision of public infrastructure by public authorities
out of community infrastructure contributions levied in the North West and
South West Growth Centres of Sydney.

Certification of development
Schedule 4.1 to the Bill amends the EPA Act:

(a) in relation to the requirements applying to the issue of Part 4A certificates and
complying development certificates, and

(b) in relation to the obligations of certifying authorities and, in particular, the
obligations of certifying authorities to give directions with respect to certain
matters involving the carrying out of development and to report on those
matters, and

(c) to require design certificates from appropriately accredited persons for certain
aspects of development, and

(d) to strengthen the powers under the EPA Act to prevent or deal with
development that contravenes that Act, including enabling the issue of orders
to cease building work or subdivision work, enabling authorised persons to ask
questions of accredited certifiers and others involved in development and
enabling consent authorities to require security to ensure compliance with
development consents in the carrying out of building work and subdivision
work, and

(e) to provide for the Minister to take action to suspend a council’s certification
functions following an adverse report from the Building Professionals Board
on the results of an investigation, and

(f) to make other amendments to improve the certification processes.

Schedule 4.2 to the Bill amends the Environmental Planning and Assessment
Regulation 2000 (the EPA Regulation) in relation to applications for, and the issue
of, Part 4A certificates and complying development certificates, critical stage
inspections and fees for building certificates in certain circumstances.

Schedule 4.3 amends the Strata Schemes (Freehold Development) Act 1973 in
relation to the issue of strata certificates under that Act.

Schedule 4.4 amends the Strata Schemes (Leasehold Development) Act 1986 in
relation to the issue of strata certificates under that Act.

Miscellaneous amendments
Schedule 5 to the Bill contains miscellaneous amendments, including amendments:

(a) to enact a scheme for the development of paper subdivisions, and

(b) to omit provisions relating to places of public entertainment that are no longer
necessary following the integration of separate licensing provisions under the
Local Government Act 1993 into the planning approvals and control processes
of the EPA Act, and

(c) to remove or modify some requirements for concurrence and referrals in
relation to planning matters, and

(d) to provide for the making of consequential savings and transitional
regulations.

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act on a day or days to be
appointed by proclamation.

Clause 3 is a formal provision that gives effect to the amendments to the
Environmental Planning and Assessment Act 1979 and other Acts and instruments
set out in Schedules 1–5.

Clause 4 repeals the Miscellaneous Acts (Planning) Repeal and Amendment Act
1979 as a consequence of the remaining operative provisions of that Act ceasing to
have any operation following the amendments proposed by Schedule 1.

Clause 5 provides for the repeal of the proposed Act after all the amendments made
by the proposed Act have commenced. Once the amendments have commenced the
proposed Act will be spent and section 30 of the Interpretation Act 1987 provides
that the repeal of an amending Act does not affect the amendments made by that Act.

Schedule 1 Amendments relating to environmental
planning
Schedule 1.1 Principal amendments to Environmental Planning and
Assessment Act 1979
General matters relating to plan-making
Schedule 1.1 [1]–[3] amend section 4 of the EPA Act as a consequence of the
changes made to the plan-making process to update the definition of environmental
planning instrument, omit the definition of regional environmental plan and insert
a definition of relevant planning authority.

Schedule 1.1 [4] amends section 24 of the EPA Act to confirm existing arrangements
that State environmental planning policies (SEPPs) may be made by the Governor
and local environmental plans (LEPs) may be made by the Minister (or delegate).

Schedule 1.1 [5] amends section 26 of the EPA Act to allow an environmental
planning instrument to make provision for the temporary or limited zoning of land.

Schedule 1.1 [6] amends section 33A of the EPA Act to enable a LEP that adopts the
standard instrument to be made without complying with the statutory conditions
precedent for making the LEP if it replaces an existing LEP and does not make
substantial changes to the general effect of the existing instrument.

Schedule 1.1 [7] substitutes section 34A of the EPA Act to clarify consultation
procedures for threatened and other species. Consultation is only required with the
Director-General of the Department of Environment and Climate Change before
making an environmental planning instrument if, in the opinion of the
Director-General of the Department of Planning or the relevant planning authority,
there could be an adverse impact on critical habitat or threatened species, populations
or ecological communities, or their habitats. The new provision also reduces the
period for comments by the Director-General from 40 days to 21 days.

Schedule 1.1 [8] inserts section 34B into the EPA Act to place on a permanent
footing in the Act provisions contained in a regional environmental plan to prevent
development consent being granted in the Sydney hydrological drinking water
catchment unless it has a neutral or beneficial effect on the quality of water.

Schedule 1.1 [12] extends the operation of section 73A of the EPA Act (which
dispenses with compliance with conditions precedent for the making of instruments
dealing with certain minor amendments) to instruments that the Minister considers
do not have any significant adverse impact on the environment or adjoining land.

Schedule 1.1 [13] amends section 73A of the EPA Act to make it clear that the
section applies to the amendment or replacement of maps adopted by an instrument.

Schedule 1.1 [14] amends section 74B of the EPA Act to make a consequential
amendment relating to development control plans.

Schedule 1.1 [15] amends section 74C of the EPA Act to remove the ability of a
development control plan to provide for notification requirements for complying
development.

State environmental planning policies
Schedule 1.1 [9] substitutes Division 2 of Part 3 of the EPA Act relating to the
making of State environmental planning policies by the Governor for the purpose of
environmental planning by the State. Policies may be made with respect to any
matter that is, in the opinion of the Minister, of regional as well as State
environmental planning significance. The current requirement for a draft SEPP to be
submitted by the Director-General of the Department of Planning to the Minister has
been removed.

Regional environmental plans
Schedule 1.1 [10] repeals Division 3 of Part 3 of the EPA Act to remove provisions
relating to regional environmental plans. Existing regional environmental plans will
be deemed to be SEPPs under Schedule 1.2 and matters of regional environmental
planning significance may be the subject of future SEPPs.

Local environmental plans
Schedule 1.1 [11] repeals Divisions 4 and 4A of Part 3 of the EPA Act relating to
LEPs and inserts instead a new Division 4. The new Division establishes a new
process for making LEPs.

Proposed section 53 enables the Minister (or delegate) to make local environmental
plans for environmental planning in local government areas and in such other areas
of the State as the Minister determines.

Proposed section 54 identifies the relevant planning authority for proposed LEPs,
namely the council, the Director-General or any other person or body prescribed by
the regulations. The Director-General or any such other person or body may be
designated as the relevant planning authority, instead of the council, in specified
circumstances, including where the proposed LEP relates to matters of State or
regional environmental planning significance or the council has, in the opinion of the
Minister, failed to comply with its obligations with respect to the proposed LEP or
has not carried out those obligations in a satisfactory manner.

Proposed section 55 requires a planning proposal to be prepared by the relevant
planning authority explaining the intended effect of a proposed environmental
planning instrument and the justification for making the instrument. The proposed
section also sets out the matters to be included in the planning proposal.

Proposed section 56 enables a planning proposal to be forwarded to the Minister for
a gateway determination, that is, a determination as to whether the matter is to
proceed or should be resubmitted, as to the community and other consultation
requirements before the instrument is made, whether there should be a public hearing
by the PAC, the time limits for the stages of the procedure for making the instrument
and who is to make the instrument. Regulations may be made setting out community
consultation requirements for categories of instruments. The Minister may arrange
for a review of a planning proposal to be undertaken by the PAC or a regional panel.

Proposed section 57 sets out the community consultation requirements for the
making of LEPs.

Proposed section 58 enables a relevant planning authority to vary a planning proposal
as a result of community consultation and provides that, if such a change is made,
further consultation is not required unless the Minister so directs.

Proposed section 59 provides for the Director-General to make arrangements for the
drafting of LEPs and to consult with the relevant planning authority on the terms of
draft plans. The proposed section also provides for the making of LEPs and enables
matter to be deferred.

Proposed section 60 enables regulations to be made with respect to the making of
environmental planning instruments.

Schedule 1.2 Consequential and other amendments to Environmental
Planning and Assessment Act 1979
Schedule 1.2 [1]–[5] make consequential amendments to definitions in section 4 of
the EPA Act.

Schedule 1.2 [6], [9]–[11], [13]–[16], [19]–[21], [23]–[26] and [28]–[36] amend
various sections of the EPA Act as a consequence of the proposed changes to
plan-making for LEPs.

Schedule 1.2 [7] and [8] repeal sections 25 and 26 of the EPA Act as a consequence
of the changes made to plan-making generally.

Schedule 1.2 [12], [17], [18], [22] and [27] amend and repeal various sections of the
EPA Act as a result of the repeal of provisions relating to regional environmental
plans.

Schedule 1.2 [37] amends Schedule 6 to the EPA Act to insert savings and
transitional provisions consequent on the environmental planning amendments. The
provisions save existing environmental planning instruments (including regional
environmental plans which are deemed to be SEPPs) and provide for a review of
those existing regional environmental plans.

Schedule 1.3 Amendment of Fisheries Management Act 1994 No 38
Schedule 1.3 makes a consequential amendment on the changes to the public
consultation procedures for environmental planning instruments (EPIs).

Schedule 1.4 Amendment of Heritage Act 1977 No 136
Schedule 1.4 repeals Part 5 (Environmental planning instruments affecting certain
land) of the Heritage Act 1977. Appropriate consideration of heritage matters is to be
included as part of the proposed gateway determination for proposed LEPs.

Schedule 1.5 Amendment of Sydney Water Catchment Management Act
1998 No 171
Schedule 1.5 [3] and [4] amend sections 48 and 52 of the Sydney Water Catchment
Management Act 1998 to provide that regulations for special areas or controlled areas
do not prevail over the provisions of SEPPs.

Schedule 1.5 [5] repeals Division 4 of Part 5 of that Act, which required the
preparation of a regional environmental plan for the catchment area (see now
proposed section 34B). Schedule 1.5 [1] and [2] make consequential amendments.

Schedule 1.6 Amendment of Threatened Species Conservation Act
1995 No 101
Schedule 1.6 makes a consequential amendment on the changes to the public
consultation procedures for EPIs.

Schedule 1.7 Amendment of Water Management Act 2000 No 92
Schedule 1.7 amends section 322 of the Water Management Act 2000 to provide that
regulations for special areas do not prevail over the provisions of SEPPs.

Schedule 1.8 Amendment of Drinking Water Catchments Regional
Environmental Plan No 1
Schedule 1.8 makes consequential repeals.

Schedule 2 Amendments relating to development
assessment
Schedule 2.1 Principal amendments to the Environmental Planning and
Assessment Act 1979
New planning bodies—general matters
Schedule 2.1 [1] amends section 4 of the EPA Act to omit definitions as a
consequence of the repeal of provisions relating to Commissions of Inquiry. The
current functions of Commissioners of Inquiry, and additional functions, are to be
undertaken by the PAC.

Schedule 2.1 [2] amends section 4 of the EPA Act to recognise the PAC and regional
panels as consent authorities for the purposes of the Act, as a consequence of the
conferral of functions on those bodies by the proposed Act.

Schedule 2.1 [3] amends section 4 of the EPA Act to insert definitions relating to the
new planning bodies created by the proposed Act.

Schedule 2.1 [4] repeals section 20 of the EPA Act, which establishes the Local
Government Liaison Committee.

Schedule 2.1 [5] repeals section 22 of the EPA Act, which enables the establishment
of other committees. Schedule 2.1 [6] makes a consequential amendment.

Schedule 2.1 [8] amends section 23 of the EPA Act to enable the Minister, the
Director-General or the Ministerial corporation to delegate functions under the Act
or any other Act to the PAC or a regional panel. Schedule 2.1 [7] and [11] make
consequential amendments.

Schedule 2.1 [9] amends section 23 of the EPA Act to enable the PAC, with the
Minister’s approval, to delegate functions to a council. The amendment also enables
a regional panel, with the Minister’s approval, to delegate its functions. Schedule 2.1
[10] makes a consequential amendment.

Schedule 2.1 [12] amends section 23 of the EPA Act to enable the Minister to
delegate the function of determining whether to approve a project, or a concept plan,
under Part 3A of the Act, other than approvals of critical infrastructure projects or
concept plans for such projects. Currently, the Minister may not delegate these
functions.

Schedule 2.1 [13] inserts proposed Part 2A into the EPA Act. Division 6 (proposed
sections 23M–23P) contains provisions relating to councils and the new planning
bodies. The provisions prohibit the making of decisions by the PAC or a regional
panel that may have a significant adverse financial impact on a council unless the
council has been consulted, place obligations on councils to provide assistance and
not to obstruct planning bodies or planning arbitrators and require general managers
of councils to carry out reasonable instructions of the PAC or a regional panel.

Councils are also required to pay certain costs of the PAC, regional panels and
planning arbitrators and to indemnify planning arbitrators for costs relating to certain
appeals.

Schedule 2.1 [53] amends section 158 of the EPA Act to extend protections for
personal liability for things done in good faith under the Act to members of the PAC,
regional panels and independent hearing and assessment panels and planning
arbitrators. Schedule 2.1 [54] makes a consequential amendment.

Planning Assessment Commission
Schedule 2.1 [13] inserts proposed Part 2A into the EPA Act. Division 2 (proposed
sections 23B–23F) establishes the PAC as a statutory body representing the Crown,
the affairs of which are to be managed by its chairperson. The functions of the PAC
are to determine Part 3A projects and concept plan approvals (if delegated by the
Minister) and, if requested by the Minister, to advise the Minister as to matters
relating to planning and environmental planning instruments and administration, to
review aspects of projects or concept plans under Part 3A, to review environmental
aspects of proposed development and to review other matters that may currently be
the subject of inquiries by a Commission of Inquiry. The PAC may also, at the
Minister’s request, exercise the functions of a panel under the Act, including a
regional panel (if there is no regional panel for an area). Regulations may be made
for or with respect to matters relating to the procedures of the PAC. There will be no
appeal or review under the Act from a decision of the PAC if the decision is made
after a public hearing.

Schedule 2.1 [55] inserts proposed Schedule 3 into the EPA Act, which contains
provisions relating to the members of the PAC. The PAC is to have not less than 3
members and not more than 8 members, and a chairperson (either part-time or
full-time). Members other than the chairperson are to be part-time members.

Members are to have expertise in at least 1 of planning, architecture, heritage, the
environment, urban design, land economics, traffic and transport, law, engineering,
tourism or government and public administration.

Joint regional planning panels
Schedule 2.1 [13] inserts proposed Part 2A into the EPA Act. Division 3 (proposed
sections 23G and 23H) enables the Minister, by order published in the Gazette, to
establish a regional panel for a particular part of the State. The area covered by a
regional panel will generally consist of 2 or more council areas. The functions of a
regional panel are to act as a consent authority if it is required to do so by an
environmental planning instrument, to exercise planning functions removed from
councils under Part 6 of the Act and to advise the Minister as to matters relating to
planning and environmental planning instruments. Regulations may be made for or
with respect to matters relating to the procedures of regional panels and the provision
of reports and information by regional panels.

Schedule 2.1 [38] amends section 118 of the EPA Act to enable the Minister to
appoint a regional panel to exercise the planning and plan-making functions of a
council in circumstances where the Minister may currently appoint a planning
assessment panel or a planning administrator to do so. Schedule 2.1 [39], [40], [42],
[43] and [45]–[49] make consequential amendments.

Schedule 2.1 [41] amends section 118 of the EPA Act to add the functions of a
council relating to classification of council land (as either operational or community
land) under the Local Government Act 1993 to the functions that a planning
administrator, planning assessment panel or regional panel may exercise under
section 118 of the EPA Act.

Schedule 2.1 [44] amends section 118 of the EPA Act to provide for functions to be
conferred on regional panels under that section by order of the Minister published in
the Gazette. The amendment also requires the Minister to notify a council of a
proposed conferral of functions under the section and to give it 21 days to show cause
why the action should not be taken. The Minister must consider any submissions
made within that period.

Schedule 2.1 [55] inserts proposed Schedule 4 into the EPA Act, which contains
provisions relating to the members of regional panels. A regional panel is to have 5
members, of whom 3 are to be appointed by the Minister and 2 are to be nominees of
councils of areas for which the panel is constituted. One of the members appointed
by the Minister is to be chairperson. The members appointed by the Minister and at
least 1 council nominee are required to have expertise in similar fields as are required
for PAC members.

Independent hearing and assessment panels
Schedule 2.1 [13] inserts proposed Part 2A into the EPA Act. Division 4 (proposed
sections 23I and 23J) enables councils to constitute panels of experts to assess
aspects of development applications or other planning matters. Members are to be
selected from a list of persons approved by the Director-General for the purposes of
the proposed section. Regulations may be made for or with respect to matters relating
to the procedures of the panels.

Planning arbitrators
Schedule 2.1 [13] inserts proposed Part 2A into the EPA Act. Division 5 (proposed
sections 23K and 23L) provides for a register of planning arbitrators to be kept by the
Director-General. Planning arbitrators must have expertise in planning, architecture,
heritage, urban design, law or engineering. Regulations may be made for or with
respect to planning arbitrators, including as to their registration, appointment and
removal and conduct and complaints about them. The main function of planning
arbitrators is to conduct reviews of development application determinations by
councils under proposed Division 7A of Part 4 (see Schedule 2.1 [35]).

Complying development
Schedule 2.1 [15] amends section 76A of the EPA Act to clarify that an
environmental planning instrument may specify classes of development as
complying development.

Schedule 2.1 [16] amends section 76A of the EPA Act to remove the limitations on
the kind of development that may be specified as complying development by an
environmental planning instrument. Such limitations may still be specified in
environmental planning instruments.

Schedule 2.1 [23] amends section 85A of the EPA Act to remove the ability of
development control plans to specify notification requirements for applications for
complying development.

Schedule 2.1 [24] amends section 85A of the EPA Act to remove the current
requirement that an application for a complying development certificate be
determined by a council or an accredited certifier within 7 days and to replace it with
a requirement that a determination be made within the period prescribed by the
regulations.

Schedule 2.1 [25] amends section 85A of the EPA Act to insert an additional
requirement that the determination of an application for a complying development
certificate be notified to any person prescribed by the regulations.

Schedule 2.1 [26] amends section 86A of the EPA Act to enable regulations to be
made specifying the circumstances when development is or is not taken to be
physically commenced. Under that section a complying development certificate
lapses if development is not physically commenced within 5 years of the date of the
certificate.

Appeals and reviews
Schedule 2.1 [18] inserts proposed section 79AA into the EPA Act, to provide for
public notification of development in respect of which new third party applications
for review may be made.

Schedule 2.1 [19] amends section 79C of the EPA Act to enable a consent authority
to reject a submission by an objector to a development application in respect of which
new third party applications for review may be made, if the consent authority
considers the objection has been made primarily to secure or maintain a direct or
indirect commercial advantage. The effect of rejection is that the objection is taken
not to have been made, so that notification and review rights under the Act will not
apply.

Schedule 2.1 [35] inserts proposed Division 7A of Part 4 (proposed sections
96B–96L) into the EPA Act. The proposed Division establishes a right for applicants
for development consent to make review applications for review by a planning
arbitrator of determinations by councils relating to development applications and
consents, being determinations of a class to be prescribed by the regulations
(proposed section 96C). It also re-enacts the existing right for a review by a council
of its own determination under section 82A of the EPA Act (proposed section 96D),
other than for planning arbitrator matters. There will also be a right for objectors to
certain classes of development prescribed by regulations to apply for reviews by
planning arbitrators (in the case of development applications determined by a
council) or by the PAC (in the case of development applications determined by
regional panels) (proposed section 96E). Currently, the only right of appeal of an
objector is in respect of designated development under section 98 of the EPA Act. A
planning arbitrator will also have the function of reviewing whether a council should
have rejected a development application and may require a council to consider such
an application (proposed section 96I). The proposed Division contains provisions
relating to procedures of reviewing bodies and reviews, including provision for
notification of applications, periods of review, the extent to which an amended
development application may be considered, notice of review determinations and the
effect of a review determination. A reviewing body is to have all the functions of the
original consent authority and may consider additional matters. The proposed
Division also provides for the circumstances in which a planning arbitrator will be
taken to have refused an application (so that an appeal to the Land and Environment
Court may be made) if a planning arbitrator fails to determine a matter or is not
appointed (proposed section 96K). It will be an offence for a planning arbitrator not
to act impartially or to seek or offer a benefit on his or her own behalf or on behalf
of another person, or for another person to give or offer such a benefit, on an
understanding that the planning arbitrator will act less than impartially (proposed
section 96L). Schedule 2.1 [20] and [32]–[34] make consequential amendments.

Schedule 2.1 [36] inserts proposed sections 97–97B into the EPA Act. Proposed
section 97 re-enacts the existing right of an applicant for a development application
to appeal to the Land and Environment Court against a decision of a consent
authority and other rights to appeal relating to development consents. The proposed
section also prohibits an applicant who has a right to apply for a review by a planning
arbitrator from appealing unless the applicant has the consent of the consent authority
or is appealing against the planning arbitrator’s decision. Provisions relating to rights
to appeal against decisions relating to modification of consents have also been put
into this section, rather than the section relating to modification. Proposed section
97A now contains the provisions relating to notices of appeals. Proposed section 97B
is a new provision that requires the Land and Environment Court to order an
applicant to pay the costs incurred by a consent authority in respect of an original
application and proceedings relating to that application, if the Court permits the filing
of an amended development application. Proposed section 97 also reduces the period
within which appeals against decisions may be made from 12 months to 3 months.

Schedule 2.1 [37] amends section 99 of the EPA Act to provide for the Land and
Environment Court to deal with a review application by an objector to development
jointly with an appeal made to the Court by the applicant for consent.

Crown development
Schedule 2.1 [27] inserts proposed Division 4 of Part 4 into the EPA Act (proposed
sections 88–89C). The proposed Division prohibits a consent authority from refusing
development consent to, or imposing a condition on, a development application
made by or on behalf of the Crown except with the approval of the Minister or the
applicant (in the case of a condition). A Crown development application may be
referred to a regional panel for determination if a council fails to determine it within
the period prescribed by the regulations. If the regional panel fails to determine it, the
application is to be referred to the Minister. In the case of a consent authority other
than a council, a Crown development application may be referred directly to the
Minister if the consent authority fails to determine it. The Minister may direct the
relevant consent authority as to how to determine the application. The proposed
Division also applies to applications to modify a Crown development consent.

Miscellaneous matters
Schedule 2.1 [14] amends section 75F of the EPA Act to require the
Director-General to consult public authorities on environmental assessment
requirements for a project under Part 3A of the EPA Act only if guidelines in respect
of the project require them to be consulted.

Schedule 2.1 [17] amends section 78A of the EPA Act to require a development
application to be accompanied by a statement of environmental effects, if it is not
required to be accompanied by an environmental impact statement or a species
impact statement.

Schedule 2.1 [21] amends section 80A of the EPA Act to enable a development
consent that imposes conditions enabling specified hours of operation and extended
hours of operation, or increases the limit on the number of persons permitted in a
building when used for specified purposes, to be reviewed by a consent authority at
intervals specified in the consent. On a review, the condition as to extended hours and
additional persons may be changed.

Schedule 2.1 [22] omits a note.

Schedule 2.1 [28] amends section 95 of the EPA Act to provide that development
consent for the erection of a building, the subdivision of land or the carrying out of
work will lapse, even if it has physically commenced before it would usually lapse,
if work is not substantially commenced within 2 years after the date on which it
would usually lapse.

Schedule 2.1 [29] amends section 95 of the EPA Act to enable regulations to be
made specifying the circumstances when development is or is not taken to be
substantially or physically commenced. Under that section a development consent
lapses if development is not physically commenced within 5 years of the date of the
consent (or within such other period as the consent may specify).

Schedule 2.1 [30] amends section 95A of the EPA Act to enable a development
consent that is subject to a deferred commencement condition to be extended for 1
year on application made before the original period within which it will lapse expires,
if the original period is less than 5 years. Schedule 2.1 [31] makes a consequential
amendment.

Schedule 2.1 [50] amends section 118 of the EPA Act to enable planning and
plan-making and other functions of a council to be conferred under that section on a
planning administrator, planning assessment panel or regional panel if the council
fails to comply with a gateway determination relating to the making of an
environmental planning instrument or fails to provide staff and facilities to the PAC,
a regional panel or a planning arbitrator in accordance with the Act.

Schedule 2.1 [51] amends section 118AD of the EPA Act to make it an offence for
a general manager not to carry out any reasonable direction of a planning
administrator or planning assessment panel when they are exercising functions of the
council.

Schedule 2.1 [52] inserts proposed section 118AG into the EPA Act. The proposed
section prevents administrative law and other proceedings being taken in respect of
the exercise by the Minister of a function relating to the appointment of a planning
administrator or planning assessment panel, or conferral of functions on a regional
panel, under Division 1AA of Part 6 of the EPA Act.

Schedule 2.2 Consequential amendments to Environmental Planning
and Assessment Act 1979
Schedule 2.2 [1] omits Division 4 of Part 2 of the EPA Act, which contains
provisions relating to Commissioners of Inquiry.

Schedule 2.2 [2] omits a provision relating to independent hearing and assessment
panels, as a consequence of the enactment of proposed Division 4 of Part 2A and the
conferral of functions relating to projects under Part 3A of the EPA Act on the PAC.

Schedule 2.2 [7] makes a consequential amendment.

Schedule 2.2 [3] amends section 75I of the EPA Act as a consequence of the
conferral on the PAC of the function of reviewing matters relating to proposed
projects under Part 3A of the Act. Schedule 2.2 [4]–[6] make similar consequential
amendments.

Schedule 2.2 [8] amends section 75O of the EPA Act as a consequence of the
conferral on the PAC of the function of reviewing matters relating to proposed
concept plans for projects under Part 3A of the EPA Act. Schedule 2.2 [9] and [11]
make similar consequential amendments.

Schedule 2.2 [10], [19], [33], [39], [46], [55], [56] and [57] amend various
provisions of the EPA Act as a consequence of amendments made by the proposed
Act relating to Crown developments.

Schedule 2.2 [12]–[16], [27], [47]–[54], [69] and [72] amend various provisions of
the EPA Act as a consequence of the conferral of functions on the PAC of reviewing
matters relating to proposed development and activities and other matters and the
repeal of provisions relating to Commissioners of Inquiry.

Schedule 2.2 [17] and [18] amend section 81 of the EPA Act to provide for the
notification of development application determinations to objectors who make a
review application under proposed section 96E.

Schedule 2.2 [20]–[23] amend section 82 of the EPA Act as a consequence of the
insertion of provisions relating to review applications.

Schedule 2.2 [24] omits section 82A of the EPA Act, the current provision enabling
review by councils of development application, which is being replaced by proposed
section 96E.

Schedule 2.2 [25], [26] and [28]–[32], [34]–[38] and [43]–[45] amend various
provisions of the EPA Act as a consequence of the insertion of provisions relating to
review applications.

Schedule 2.2 [40]–[42] amend section 109J of the EPA Act to extend requirements
restricting the issue of subdivision certificates until the period for objections has
passed to matters for which review applications may be made by objectors under
proposed section 96E.

Schedule 2.2 [58] renumbers provisions relating to the certification of Crown
building work and Crown development for public entertainment so as to relocate the
provisions at the end of Part 4A of the EPA Act.

Schedule 2.2 [59]–[68] amend various provisions of the EPA Act as a consequence
of the conferral of functions on regional panels under Division 1AA of Part 6 of the
EPA Act.

Schedule 2.2 [70] repeals provisions of the EPA Act relating to the holding of
inquiries by Commissioners of Inquiry. Such functions are conferred on the PAC.

Schedule 2.2 [71] amends section 121 of the EPA Act to enable a member of the
PAC to be appointed to hold an inquiry and report on a dispute between the
Department of Planning or the Director-General of that Department and a public
authority (including a council), or between public authorities, with respect to a matter
relating to functions under or the operation of the EPA Act, the regulations or an
environmental planning instrument. These functions are currently exercised by
Commissioners of Inquiry.

Schedule 2.2 [73] amends section 152 of the EPA Act to remove the unlimited right
of a person to be represented where there is a right to be heard under the EPA Act, as
a consequence of the insertion of powers to make regulations prohibiting or limiting
the rights of persons under the EPA Act to be represented at reviews by the PAC or
before certain other planning bodies.

Schedule 2.2 [74] amends Schedule 5B to the EPA Act to omit provisions relating
to procedures of planning assessment panels, as a consequence of the insertion of
provisions relating to procedures of planning bodies in regulations under the EPA
Act.

Schedule 2.2 [75] inserts savings and transitional provisions consequent on the
enactment of Schedule 2 to the proposed Act.

Schedule 2.3 Amendment of Heritage Act 1977 No 136
Schedule 2.3 amends the Heritage Act 1977 to replace references in that Act to
Commissioners of Inquiry and Commissions of Inquiry under the EPA Act with
references to the PAC and to make other consequential amendments.

Schedule 2.4 Amendment of Independent Commission Against
Corruption Act 1988 No 35
Schedule 2.4 amends section 74C of the Independent Commission Against
Corruption Act 1988 to enable the Independent Commission Against Corruption to
recommend in a report that consideration be given to the removal from office of a
member of the PAC or of a regional panel or a planning administrator, because of
corrupt conduct. Under the amendments made to the EPA Act by the proposed Act,
this will be a ground for removal from office.

Schedule 2.5 Amendment of Ombudsman Act 1974 No 68
Schedule 2.5 amends section 5 of the Ombudsman Act 1974 to make planning
arbitrators public authorities for the purposes of that Act, and thus subject to that
Act’s provisions.

Schedule 2.6 Amendment of Public Sector Employment and
Management Act 2002 No 43
Schedule 2.6 amends the Public Sector Employment and Management Act 2002 to
remove references to Commissioners of Inquiry under the EPA Act.

Schedule 2.7 Amendment of Statutory and Other Offices Remuneration
Act 1975 (1976 No 4)
Schedule 2.7 amends the Statutory and Other Offices Remuneration Act 1975 to
remove references to Commissioners of Inquiry under the EPA Act.

Schedule 2.8 Amendment of Water Act 1912 No 44
Schedule 2.8 amends the Water Act 1912 to replace references in that Act to
Commissioners of Inquiry, Commissions of Inquiry and inquiries under the EPA Act
with references to the PAC and reviews by the PAC.

Schedule 2.9 Amendment of Water Management Act 2000 No 92
Schedule 2.9 amends the Water Management Act 2000 to replace references in that
Act to Commissioners of Inquiry, Commissions of Inquiry and inquiries under the
EPA Act with references to the PAC and reviews by the PAC.

Schedule 2.10 Amendment of Environmental Planning and Assessment
Regulation 2000
Schedule 2.10 [1] amends clause 51 of the EPA Regulation to extend from 7 days to
14 days the period within which a consent authority may refuse to accept a
development application.

Schedule 2.10 [3]–[8] amend various provisions of the EPA Regulation to provide
for the giving of public notice of, and procedures for objections to, development in
respect of which an objector may seek a review under proposed Division 7A of Part
4 of the EPA Act. The procedures are to be the same as those for other advertised
development, except that notice is to be given to persons owning or occupying land
up to 1km of the land subject to the proposed development. Schedule 2.10 [2] makes
a consequential amendment.

Schedule 2.10 [9] omits clause 113A of the EPA Regulation as a consequence of the
proposed repeal of section 82A of the EPA Act.

Schedule 2.10 [10] inserts proposed Division 14 of Part 6 of the EPA Regulation
(proposed clauses 124A–124D). The proposed Division prescribes development for
the purposes of entertainment facilities, function centres, nightclubs, pubs and
registered clubs as development for which a condition enabling review of a
development consent permitting extended hours of operation or increasing the
maximum numbers of persons permitted in a building may be imposed and the
matters that must be included in such a consent. It also provides for review
procedures, including notice of a review and the right to make submissions.

Schedule 2.10 [11] amends clause 264 of the EPA Regulation to require a council to
include details of the outcome of any review of a review condition in its register of
development applications and consents.

Schedule 2.10 [12] inserts proposed Part 16B (proposed clauses 268C–268K) into
the Regulation. The proposed Part contains provisions relating to procedures of
planning bodies, that is, the PAC, regional panels and planning arbitrators. It also
specifies that a planning arbitrator may remain on the register of planning arbitrators
for 3 years and sets out circumstances in which a planning arbitrator may be removed
from the register.

Schedule 2.10 [13] inserts proposed clause 285 into the EPA Regulation, setting out
the categories of development for which objectors may make a review application
under the EPA Act. The categories are residential development exceeding 2 storeys,
or containing more than 5 dwellings on a site exceeding 2,000m2, that exceeds an
applicable floor space ratio or height development standard by more than 25% or
commercial or mixed use development that exceeds 9m in height, on a site exceeding
2,000m2, that exceeds an applicable floor space ratio or height development standard
by more than 25%.

Schedule 3 Amendments relating to development
contributions
Schedule 3.1 Amendment of Environmental Planning and Assessment
Act 1979
Schedule 3.1 [4] omits Divisions 6 and 6A of Part 4 of the EPA Act.

Schedule 3.1 [6] inserts proposed Part 5B into the EPA Act containing the operative
provisions for development contributions.

Division 1 contains provisions of general operation throughout Part 5B. Local
councils may require development contributions for community infrastructure under
Division 2. The State may require development contributions for the provision of
public infrastructure under Division 3. Planning authorities can enter into voluntary
planning agreements for the provision of public infrastructure and other public
benefits under Division 4. Local councils may require development contributions for
affordable housing under Division 5. The State Infrastructure Fund is established by
Division 6.

Division 1 Preliminary
Division 1 is preliminary. It contains definitions used in the Part and other
interpretative provisions relating to community infrastructure and public
infrastructure. It sets out the key considerations for development contributions and
the accountability requirements of planning authorities for development
contributions. Finally, the Division sets out how development contributions are to be
used.

Proposed section 116A is an interpretative provision [cf section 93C of EPA Act].

Local contributions will now be community infrastructure contributions. Special
infrastructure contributions will be renamed State infrastructure contributions and
special contributions areas will be renamed State contributions areas.

Proposed section 116B provides that the Part applies to development that requires
development consent. The proposed section also provides for the application of the
Part to projects under Part 3A.

Proposed section 116C defines community infrastructure, public infrastructure, and
the provision of public infrastructure. Unlike the current provisions of the EPA Act,
these terms are used consistently throughout the Part.

Public amenities and public services, but not including water supply and sewerage
services, are now defined as community infrastructure [cf section 93C of the EPA
Act].

Public infrastructure includes public amenities and public services, affordable
housing and transport infrastructure but does not include water supply and sewerage
services. The new definition of public infrastructure extends the meaning of public
infrastructure [cf section 93F (2) and section 94ED (1) of the EPA Act].

Proposed section 116D sets out the key considerations for planning authorities in
making a contributions plan, a State infrastructure determination, entering into a
voluntary planning agreement or making a determination in relation to additional
community infrastructure.

Proposed section 116E is a regulation making power to provide for the collection
and publication of information by planning authorities about the determination,
collection, application and use of development contributions under the Part.

Proposed section 116F sets out how development contributions are to be used [cf
section 93E of the EPA Act].

Division 2 Community infrastructure contributions
Division 2 provides for community infrastructure contributions by local councils [cf
sections 94–94B and 94E of the EPA Act].

Proposed section 116G provides that a consent authority can require community
infrastructure contributions by way of a direct contribution (the current section 94)
or by way of an indirect contribution (the current section 94A) but not both [cf
section 94A (2) of the EPA Act]. The proposed section also provides that once a
direct contribution has been required in respect of the subdivision of land, no further
community infrastructure contribution can be required in respect of further
development on the land except to the extent of any increased demand for public
infrastructure attributable to the further development.

Proposed section 116H requires council to have a contributions plan before it can
require either kind of contribution [cf sections 94 and 94A of the EPA Act]. If there
is no contributions plan or the contributions plan is inadequate the Minister may
authorise a council to require a contribution [cf section 94E of the EPA Act]. Both
the council and Minister are to have regard to the key considerations for development
contributions when approving a contributions plan or giving a direction.

Proposed section 116I provides that a contributions plan can require contributions
only for key community infrastructure (as defined in the regulations) or for additional
community infrastructure approved by the Minister. The provision also enables the
Minister to waive the requirement for approval in certain circumstances. It also
contains a provision for regulations to set out the information that councils are to
supply in order to seek approval for additional community infrastructure.

Proposed section 116J sets out the nexus requirements for direct contributions [cf
section 94 (1) and (2) of the EPA Act]. It also provides for the recoupment of the
cost of existing infrastructure [cf section 94 (3) of the EPA Act] and that a direct
contribution cannot be required if a contribution is sought for the same infrastructure
under Division 3.

Proposed section 116K provides that no nexus is required for indirect contributions
[cf section 94A (4) of the EPA Act]. It also provides that a condition cannot be
imposed in a State contributions area without prior ministerial (or a delegate’s)
approval [cf section 94A (2A) of the EPA Act], and contains a regulation making
power for estimating cost and imposing a maximum percentage [cf section 94A (5)
of the EPA Act]. Further, a new power is introduced allowing the Minister to vary
the maximum percentage by direction and provide for public notification.

Proposed section 116L sets out the Minister’s direction powers about community
infrastructure contributions [cf section 94E of the EPA Act]. This includes a
direction as to what constitutes a reasonable time for the application of contributions
and a direction as to the maximum amount of an indirect contribution.

Proposed section 116M provides that an EPI can no longer contain “satisfactory
arrangements” clauses that require a community infrastructure contribution to be
made [cf section 93D of the EPA Act]. The provision will not apply to EPIs made
before the clause commences, or for State infrastructure contributions.

The provision will not prevent an EPI including provision requiring consent
authorities to consider whether public infrastructure will be available to support the
proposed development.

The provision means that councils will not be able to obtain development
contributions except under Divisions 2, 4 and 5 of proposed Part 5B.

Proposed section 116N provides that the procedural matters applying to community
infrastructure contributions are set out in Part 1 of Schedule 1 to the EPA Act.

Division 3 State infrastructure contributions
Division 3 provides for State infrastructure contributions [cf sections 94ED–94EH
of the EPA Act].

Proposed section 116O enables the Minister to determine State infrastructure
contributions within a State contributions area [cf section 94ED of the EPA Act].

The Minister is to have regard to the key considerations for development
contributions when doing so.

Proposed section 116P sets out the threshold requirements for determination of a
State infrastructure contribution, including Treasury concurrence [cf section 94EE
of the EPA Act].

Proposed section 116Q makes it clear that a State infrastructure contribution is in
addition to a community infrastructure contribution [cf section 94EF (4) of the EPA
Act].

Proposed section 116R provides that an EPI can require development contributions
but only if a State infrastructure contribution is required. This provision recognises
the continuation of the “satisfactory arrangements” clauses in various EPIs requiring
development contributions for State infrastructure [cf section 93D of the EPA Act].

The Minister is to have regard to the key considerations for development
contributions when making such a clause.

Proposed section 116S provides that the procedural matters applying to State
infrastructure contributions are set out in Part 2 of Schedule 1 to the EPA Act.

Division 4 Voluntary planning agreements
Division 4 sets out the non-procedural provisions relating to voluntary planning
agreements, which together with proposed Part 3 of Schedule 1 to the EPA Act, will
be substantially the same as the existing provisions of sections 93F–93L of the EPA
Act except for proposed sections 116U and 116V.

Proposed section 116T sets out who can enter into a voluntary planning agreement
[cf section 93F (1) of the EPA Act].

Proposed section 116U provides that planning authorities must have regard to the
key considerations for development contributions before entering into a planning
agreement.

Proposed section 116V provides a council can enter into a voluntary planning
agreement for key community infrastructure as defined in the regulations without
ministerial approval, but that contributions cannot be required for additional
community infrastructure as defined in the regulations without prior ministerial
approval. The provision also enables the Minister to waive the requirement for
approval in certain circumstances. It also contains a provision for regulations to set
out the information that councils are to supply in order to seek approval for additional
community infrastructure.

Proposed section 116W sets out how voluntary planning agreements can limit other
types of development contributions [cf section 93F (3A), (5)–(5A) and (6) of the
EPA Act].

Proposed section 116X provides that the procedural matters applying to voluntary
planning agreements are set out in Part 3 of Schedule 1 to the EPA Act.

Division 5 Development contributions for affordable housing
Division 5 sets out how consent authorities can obtain a development contribution
for affordable housing [cf sections 94F–94G of the EPA Act]. The provisions are
substantially the same as current Part 4 Division 6A of the EPA Act.

Proposed section 116Y sets out the scheme and requirements for imposing a
development contribution for affordable housing [cf section 94F (1)–(3) and (6) of
the EPA Act].

Proposed section 116Z requires consent authorities to take into account any other
contribution for affordable housing when imposing a contribution [cf section 94F (4)
of the EPA Act].

Proposed section 116ZA provides that a consent authority can impose other
conditions about the provision, maintenance and retention of affordable housing [cf
section 94F (5) of the EPA Act].

Proposed section 116ZB sets out how affordable housing contributions may be used
[cf section 94G of the EPA Act]. It contains directions powers. The Minister will
now be able to direct a consent authority as to what constitutes a reasonable time for
transferring land to be made available for affordable housing.

Division 6 State Infrastructure Fund
Division 6 establishes the State Infrastructure Fund (the Fund). The Division is
substantially the same as sections 94EI–94EM of the current Act relating to the
Special Contributions Areas Infrastructure Fund except administration of the fund
will be the responsibility of the Secretary of the Treasury, in consultation with the
Director-General.

Proposed sections 116ZC–116ZG provide for the establishment of the Fund and its
administration, payments into and out of the Fund and investment powers.

Schedule 3.1 [7] enacts Schedule 1 to the EPA Act. Schedule 1 contains the
procedural provisions similar to those in Division 6 of Part 4 of the current Act.

Part 1 Community infrastructure contributions
Part 1 of Schedule 1 [clauses 1–13] contains provisions relating to community
infrastructure contributions.

Proposed clause 1 requires community infrastructure contributions to be imposed by
a condition of consent [cf sections 94 (1) and 94A (1) of the EPA Act].

Proposed clause 2 sets out the limitations on appeals for direct contributions [cf
section 94B (3) of the EPA Act], and indirect contributions [cf section 94B (4) of the
EPA Act]. It also sets out that there can be no appeal, including any action under
section 123 of the EPA Act where the Minister has approved or directed the
amendment of a contributions plan [cf section 94EAA (4) of the EPA Act].

Proposed clause 3 sets out the provisions for the dedication of land or the accepting
of a material public benefit for direct contributions [cf section 94 (5) of the EPA
Act].

Proposed clause 4 provides for other contributions to be taken into account when
requiring direct and indirect contributions [cf section 94 (6) of the EPA Act].

Proposed clause 5 provides that a community infrastructure contribution can satisfy
a requirement imposed by another public authority under another Act [cf section
94 (7) of the EPA Act].

Proposed clause 6 sets out how a contributions plan is made [cf section 94EA of the
EPA Act].

Proposed clause 7 sets out the Minister’s direction powers for contribution plans [cf
section 94EAA (1)–(3) of the EPA Act].

Proposed clause 8 provides that consent authorities that are not a council only have
to have regard to contributions plans [cf section 94B (2) of the EPA Act].

Proposed clause 9 provides for judicial notice to be taken of contribution plans and
for a limitation on legal proceedings [cf section 94EB of the EPA Act]
Proposed clause 10 provides for contributions plans and complying development [cf
section 94EC of the EPA Act]. It also provides that a consent authority can impose
a condition on a development consent for a contribution if the accredited certifier
failed to do so.

Proposed clause 11 enables contributions plans to be made across local government
area boundaries [cf section 94C of the EPA Act].

Proposed clause 12 sets out the circumstances where public infrastructure can be
provided outside New South Wales [cf section 94CA of the EPA Act].

Proposed clause 13 sets out special provisions applying to the Minister or
Director-General when imposing community infrastructure contributions [cf section
94D of the EPA Act].

Part 2 State infrastructure contributions
Part 2 of Schedule 1 [clauses 14–20] contains provisions relating to State
infrastructure contributions.

Proposed clause 14 provides that the Minister may direct a consent authority to
impose State infrastructure contributions [cf section 94EF (1) and (3) of the EPA
Act].

Proposed clause 15 sets out how the Minister is to consult in determining the level
and nature of State infrastructure contributions [cf section 94EE (4)–(5) of the EPA
Act].

Proposed clause 16 sets out the restrictions on appeals against determinations and
conditions and for modification of conditions [cf sections 94EE (6) and
94EF (6)–(7) of the EPA Act].

Proposed clause 17 provides for the dedication of land and the acceptance of a
material public benefit for State infrastructure contributions [cf section 94EF (5) of
the EPA Act].

Proposed clause 18 sets out special provisions for community and certain other
infrastructure where that is included in a state infrastructure determination [cf
section 94EE (3A)–(3B) of the EPA Act].

Proposed clause 19 provides that the Minister can direct the consent authority to sell
or transfer any land it receives from a State infrastructure contribution [cf section
94EH of the EPA Act].

Proposed clause 20 sets out how the Minister makes State contributions areas [cf
section 94EG of the EPA Act].

Part 3 Planning agreements
Part 3 of Schedule 1 [clauses 21–28] contains provisions relating to voluntary
planning agreements.

Proposed clause 21 sets out who can be additional parties to a planning agreement
[cf section 93F (7)–(8) of the EPA Act].

Proposed clause 22 establishes certain limitations for planning agreements [cf
section 93F (9)–(10) of the EPA Act].

Proposed clause 23 sets out what planning agreements must contain [cf section
93F (3)–(4) of the EPA Act].

Proposed clause 24 provides that planning agreements can run with the land when
registered [cf section 93H of the EPA Act].

Proposed clause 25 sets out when a planning agreement can or cannot be required
to be made [cf section 93I of the EPA Act].

Proposed clause 26 sets out when appeals can be made about planning agreements
[cf section 93J of the EPA Act].

Proposed clause 27 sets out the determinations and directions the Minister can make
about planning agreements [cf section 93K of the EPA Act].

Proposed clause 28 provides a regulation making power to set out the requirements
for the form, subject matter, making, amendment and revocation and giving of public
notice of planning agreements [cf sections 93G (1)–(2) and 93L of the EPA Act].

Schedule 3.1 [9] inserts new savings and transitional provisions consequent on the
enactment of Schedule 3 to the proposed Act.

The provisions relate to existing contributions, agreements and actions and the State
Infrastructure Fund, and to regulations. They also provide a regime for the repeal of
existing contributions plans on 31 March 2010.

Schedule 3.1 [1]–[3] make consequential amendments to Part 3A of the EPA Act.

Schedule 3.1 [5] effects a consequential renumbering of existing provisions.

Schedule 3.1 [8] makes a consequential amendment to the heading to Schedule 5A
to the EPA Act.

Schedule 3.2 Amendment of Growth Centres (Development
Corporations) Act 1974 No 49
Schedule 3.2 amends the Growth Centres (Development Corporations) Act 1974
(the GC Act).

Schedule 3.2 [1] inserts proposed sections 25 and 26 into the GC Act.

Proposed section 25 establishes the Community Infrastructure Trust Fund (the
Trust Fund) to be administered by the Secretary of the Treasury who may delegate
to the chief executive officer of the relevant growth centre. It provides for the
payments into and out of the Trust Fund, and investment powers. The provision
requires all community infrastructure contributions paid within a Community
Infrastructure Trust Fund area to be paid into the Trust Fund. The provision stipulates
that only land within a growth centre can be made to a Community Infrastructure
Trust Fund area.

Proposed section 26 provides that the Minister may make, amend or repeal a
community infrastructure trust fund area provided it is within a growth centre.

Schedule 3.2 [2] inserts proposed Schedule 3 into the GC Act which sets out the
proposed Community Infrastructure Trust Fund area. This is land within the North
West and South West Growth Centres of Sydney.

Schedule 3.3 Amendment of Environmental Planning and Assessment
Regulation 2000
Schedule 3.3 amends the EPA Regulation.

Schedule 3.3 [1] replaces clause 25D of the EPA Regulation. It provides that public
notice of planning agreements is to be given by making the explanatory note for the
agreement publicly available for 28 days before the planning authority enters into the
agreement. The clause sets out how that public notice is to be given in various
circumstances.

Schedule 3.3 [2] is a consequential amendment.

Schedule 3.3 [3] inserts proposed clause 25EA into the EPA Regulation setting out
the requirements for planning authorities to provide copies of planning agreements
to relevant public authorities and to report on compliance on agreements that remain
in force in their annual reports [cf section 93G (3)–(5) of the EPA Act].

Schedule 3.3 [4] inserts proposed clauses 31A and 31B into the EPA Regulation.

Proposed clause 31A sets out the infrastructure that is key community infrastructure
and the infrastructure that cannot be additional community infrastructure.

Key community infrastructure is:

(a) local roads,

(b) local bus facilities,

(c) local parks,

(d) local sporting, recreational and cultural facilities and local social facilities,

(e) local car parking facilities,

(f) drainage and stormwater management works,

(g) land for any community infrastructure, except land for riparian corridors,

(h) district infrastructure of the kind referred to in paragraphs (a)–(e) but only if
there is a direct connection with the development to which the contribution
relates.

All other community infrastructure can be approved as additional community
infrastructure except land for riparian corridors.

Proposed clause 31B sets out the requirements that a council must comply with
when seeking ministerial approval to obtain a contribution for additional community
infrastructure.

Schedule 3.4 Amendment of City of Sydney Act 1988 No 48
Schedule 3.4 amends the City of Sydney Act 1988 (the CS Act).

Schedule 3.4 [1]–[4] amend section 61 of the CS Act to remove references to the
existing section 94A and Division 6 of Part 4 of the EPA Act and replace them with
appropriate references to the proposed Part 5B.

Schedule 4 Amendments relating to certification of
development
Schedule 4.1 Amendment of Environmental Planning and Assessment
Act 1979 No 203
Amendments relating to certifying authorities
Schedule 4.1 [6] amends section 81A of the EPA Act to require a person having the
benefit of a development consent to notify the principal certifying authority at least
2 days before commencing to erect a building or to carry out subdivision work.

Schedule 4.1 [7] amends section 81A to increase the penalties for contravening that
section from 300 penalty units to 1,000 penalty units.

Schedule 4.1 [8] amends section 85A of the EPA Act to ensure that any applicable
long service leave levy payments have been made before a council or certifying
authority can forward a complying development certificate to an applicant.

Schedule 4.1 [9] amends section 86 of the EPA Act to require a person having the
benefit of a complying development certificate to notify the principal certifying
authority at least 2 days before commencing to erect a building or to carry out
subdivision work.

Schedule 4.1 [12] amends section 109D of the EPA Act to enable an environmental
planning instrument, when authorising an accredited certifier to be a certifying
authority in respect of subdivision, to place restrictions on the issue of subdivision
certificates by accredited certifiers.

Schedule 4.1 [13] amends section 109E of the EPA Act to require the person who
has the benefit of a development consent or complying development certificate for
development to appoint a certifying authority in respect of building work involved in
the development and a certifying authority in respect of subdivision work involved
in the development. The amendments enable different certifying authorities to be
appointed in respect of building work and subdivision work. Schedule 4.1 [14]
amends section 109E consequentially.

Schedule 4.1 [15] amends section 109EA of the EPA Act to enable the current
principal certifying authority for development, the proposed principal certifying
authority for development and a person who is eligible to appoint a principal
certifying authority for the development to agree on a change of principal certifying
authority. At present, the person who appointed the original principal certifying
authority has to agree and the Building Professionals Board, the relevant council and
the consent authority have to be notified in order for the change in principal
certifying authority to take effect.

Schedule 4.1 [16] inserts proposed section 109EB into the EPA Act to require
certifying authorities for development to issue notices identifying failures of the
development to comply with certain conditions of development consent and other
requirements of the EPA Act and to direct the taking of action to remedy the failures.

A certifying authority must notify the consent authority if any such direction is not
complied with. Proposed section 109EB replaces the provisions enabling the issuing
of notices under section 109L of the EPA Act which is omitted by Schedule 4.1 [18].

Schedule 4.1 [19] inserts proposed section 109PA into the EPA Act which provides
that before issuing a construction certificate for building work or subdivision work,
or a final occupation certificate, a certifying authority may seek advice from the
consent authority as to whether the consent authority considers that the design and
construction of any building or work is consistent with the relevant development
consent or complying development certificate.

Schedule 4.1 [23] inserts proposed section 117B into the EPA Act to enable action
to be taken after the investigation under the Building Professionals Act 2005 of the
activities of a council as a certifying authority. The Building Professionals Board will
be able to recommend to the Director-General of the Department of Local
Government that certain measures should be taken or may recommend to the
Minister that an order be made under the proposed section. On such a
recommendation from the Building Professionals Board and after consultation with
the Minister for Local Government, the Minister may, by order, suspend a council’s
authority to exercise some or all of the functions of a certifying authority until
appropriate measures are taken by the council.

Design certificates
Schedule 4.1 [17] inserts proposed section 109IA into the EPA Act which provides
that a design certificate is to be obtained from a person appropriately accredited
under the Building Professionals Act 2005 before a Part 4A certificate can be issued
in relation to an aspect of development, but only if the regulations so require.

Schedule 4.1 [1] and [2] make consequential amendments to section 4 of the EPA
Act.

Security to ensure compliance with development consent
Schedule 4.1 [3] amends section 80A of the EPA Act to enable a consent authority
to impose a condition on development consent, or to enter into an agreement with an
applicant for development consent, requiring the applicant to provide security to
ensure compliance with the terms of the consent during the carrying out of any
building work or subdivision work.

Schedule 4.1 [4] amends section 80A of the EPA Act to enable regulations to be
made setting maximum amounts that may be required as security under the
amendments.

Schedule 4.1 [5] amends section 80A of the EPA Act to provide for the way in which
such security may be handled by the consent authority concerned and when the
person who provided the security can request its return.

Schedule 4.1 [10] and [11] amend section 98A of the EPA Act to provide for an
appeal in relation to a consent authority’s failure to return security provided by a
person.

Powers of investigation and enforcement in relation to development
Schedule 4.1 [25] inserts proposed section 118BA into the EPA Act which sets out
a procedure by which persons authorised by a council under Division 1A of Part 6 of
the EPA Act may require accredited certifiers and other persons involved in the
carrying out of development to attend a specified place and answer questions to assist
the council in carrying out its functions under the EPA Act. Schedule 4.1 [24] makes
a consequential amendment.

Schedule 4.1 [26] substitutes section 118N of the EPA Act (which currently contains
an offence of obstructing an authorised person in carrying out functions under
Division 1A of Part 6) to extend the offence to refusing to answer questions asked
under proposed section 118BA or providing false information in response to such
questions.

Schedule 4.1 [27] amends section 121B of the EPA Act to enable the Minister, a
council and specified other persons to issue an order under that section to the owner
of land or a person apparently engaged in carrying out building work or subdivision
work to cease carrying out the work if the EPA Act is being contravened or the work
affects the support of adjoining premises. Schedule 4.1 [29] amends section 121D of
the EPA Act to exclude a person making the new section 121B order from the need
to comply with specified procedures.

Schedule 4.1 [28] inserts proposed section 121CA into the EPA Act to enable a
person who gives an order under section 121B of the EPA Act to serve a compliance
cost notice on the person to whom the order was given requiring the payment of an
amount to cover the reasonable costs associated with monitoring and ensuring
compliance with the order.

Schedule 4.1 [30] inserts proposed section 121ZKA into the EPA Act to provide a
right of appeal against a compliance cost notice.

Other amendments relating to certification matters and building work
Schedule 4.1 [20] and [21] amend section 109Q of the EPA Act to enable the
regulations to prescribe documents to be provided and matters to be notified to
consent authorities, councils or certifying authorities for the purposes of Part 4A of
the EPA Act. The amendments also enable regulations to be made with respect to
applications for, and the form and content of, Part 4A certificates and the manner in
which complaints in respect of development are to be dealt with by certifying
authorities.

Schedule 4.1 [22] amends section 109ZK of the EPA Act to ensure that the period
during which an action for loss or damage may be brought in relation to defective
building work is consistent with the period for which accredited certifiers are
required to be covered by insurance under the Building Professionals Act 2005.

Schedule 4.1 [31] amends section 157 of the EPA Act to enable the regulations to
prescribe documents to be provided and matters to be notified to consent authorities,
councils or certifying authorities under the EPA Act.

Schedule 4.1 [32] inserts savings and transitional provisions consequent on the
enactment of Schedule 4 to the proposed Act.

Schedule 4.2 Amendment of Environmental Planning and Assessment
Regulation 2000
Schedule 4.2 [1] inserts clause 129B into the EPA Regulation to prevent a certifying
authority issuing a complying development certificate unless a council or an
accredited certifier has carried out a site inspection.

Schedule 4.2 [2] amends clause 139 of the EPA Regulation to provide that an
application for a construction certificate may only be made by a person who is
eligible to appoint a principal certifying authority for the development. Schedule 4.2
[13] makes a consequential amendment.

Schedule 4.2 [3] inserts proposed clause 143B into the EPA Regulation to prevent a
certifying authority issuing a construction certificate where there is an existing
building on the site unless a council, a consent authority or an accredited certifier has
carried out an inspection of the building.

Schedule 4.2 [4] amends clause 145 of the EPA Regulation to provide that a
certifying authority must not issue a construction certificate for building work unless
the design and construction of the building is consistent with the development
consent. At present, clause 145 provides that the design and construction must not be
inconsistent with the development consent.

Schedule 4.2 [5] amends clause 149 of the EPA Regulation to provide that an
application for an occupation certificate may only be made by a person who is
eligible to appoint a principal certifying authority for the development.

Schedule 4.2 [6] inserts proposed clause 154D into the EPA Regulation to require a
certifying authority to record any inconsistencies in the design and construction of a
building with the relevant development consent or complying development
certificate when issuing an interim occupation certificate for the building. The
proposed clause also provides that a final occupation certificate may not be issued
unless the design and construction of the building concerned is consistent with the
relevant development consent or complying development certificate.

Schedule 4.2 [7] amends clause 157 of the EPA Regulation to provide that an
application for a subdivision certificate may only be made by the owner of the land
concerned or another person who has the consent of the owner.

Schedule 4.2 [8]–[10] amend clause 162A of the EPA Regulation to require certain
additional inspections during the course of carrying out building work. The
amendments also remove the requirement for inspections to be undertaken at the
commencement of certain building work.

Schedule 4.2 [11] amends clause 162C of the EPA Regulation to remove the
requirement that principal certifying authorities are to send copies of records made
in relation to missed inspections to the Building Professionals Board.

Schedule 4.2 [12] amends clause 260 of the EPA Regulation to increase the fees for
an application for a building certificate for a building under section 149A of the EPA
Act if the application is made by the person who erected the building or on whose
behalf the building was erected and the building was erected in specified
circumstances involving a contravention of the Act.

Schedule 4.3 Amendment of Strata Schemes (Freehold Development)
Act 1973 No 68
Schedule 4.3 [1] inserts proposed section 36A into the Strata Schemes (Freehold
Development) Act 1973 to specify who may make an application for a strata
certificate under that Act.

Schedule 4.3 [2] inserts proposed section 37AA into the Strata Schemes (Freehold
Development) Act 1973 to require a council or an accredited certifier to be satisfied
that any inspections prescribed by the regulations have been carried out before
issuing a strata certificate under that Act.

Schedule 4.3 [3] amends section 37E of the Strata Schemes (Freehold Development)
Act 1973 to ensure that all relevant provisions of the Building Professionals Act 2005
apply to accredited certifiers issuing strata certificates.

Schedule 4.4 Amendment of Strata Schemes (Leasehold Development)
Act 1986 No 219
Schedule 4.4 [1] inserts proposed section 65A into the Strata Schemes (Leasehold
Development) Act 1986 to specify who may make an application for a strata
certificate under that Act.

Schedule 4.4 [2] inserts proposed section 66AA into the Strata Schemes (Leasehold
Development) Act 1986 to require a council or accredited certifier to be satisfied that
any inspections prescribed by the regulations have been carried out before issuing a
strata certificate under that Act.

Schedule 4.4 [3] amends section 66E of the Strata Schemes (Leasehold
Development) Act 1986 to ensure that all relevant provisions of the Building
Professionals Act 2005 apply to accredited certifiers issuing strata certificates.

Schedule 5 Miscellaneous Amendments
Places of public entertainment
Schedule 5.1 [1], [3]–[6] and [8] omit provisions relating to places of public
entertainment that are no longer necessary following the integration of separate
licensing provisions under the Local Government Act 1993 into the planning
approvals and control processes under the EPA Act. Schedule 5.7 makes a
consequential amendment to the standard local environmental plan under the
Standard Instrument (Local Environmental Plans) Order 2006.

Paper subdivisions
Schedule 5.1 [7] inserts proposed section 155 into the EPA Act, which gives effect
to proposed Schedule 5 which contains a scheme relating to certain subdivisions that
have not been developed.

Schedule 5.1 [9] inserts proposed Schedule 5 (Paper subdivisions) into the EPA Act.

The proposed Schedule contains a scheme enabling the development of existing
subdivisions that exist on paper but, because of the size or location of the lots or other
factors, have never been able to be developed as subdivisions. The scheme is
commenced by the making of a subdivision order by the Minister specifying an
authority as the relevant subdivision authority, the planning purpose of the order, the
functions under the proposed Schedule of the authority and the subdivision land. It
will also specify the subdivision works (if any) to be undertaken by the subdivision
authority. The Minister must be of the opinion that the order is desirable to promote
and co-ordinate the orderly and economic use of the land concerned before making
the order. An order may not be made unless there is or will be a development plan
for the land and at least 60% of the owners of the land, and the owners of at least 60%
of the land, have consented to the development plan. There must also be an
environmental planning instrument or planning proposal to facilitate the proposed
planning purpose. The relevant authority is required to give effect to the planning
purpose and must prepare the development plan. The development plan is to contain
a proposed plan of subdivision and details of subdivision works and costs and how
those costs are to be borne by owners of the land. A development plan may also
contain details of any scheme for land trading or for compulsory acquisition of land
for payment of subdivision costs and rules as to the form of, and calculation of,
compensation if land is acquired by the relevant authority. The operation of the
provisions of the Land Acquisition (Just Terms Compensation) Act 1991 relating to
valuation of land for compensation purposes may be disapplied or modified by a
development plan. The proposed Schedule sets out powers that may be conferred on
a relevant authority, including land acquisition powers, contribution powers, powers
to carry out subdivision works, road powers and other ancillary powers. The
proposed Schedule also provides for voluntary contributions agreements between
owners of subdivision land and the relevant authority and for the registration of such
agreements, so that the terms of the agreement bind successive land owners. It will
be an offence to obstruct, hinder or interfere with an authorised person carrying out
functions under the proposed Schedule.

Concurrence and referral requirements
Schedule 5.1 [2] will enable the consent authority under the EPA Act to consent to
the carrying out of development on bush fire prone land if the council is provided
with a certificate by a person recognised by the NSW Rural Fire Service as a
qualified consultant in bush fire risk assessment stating that the development
conforms with the relevant requirements set out in the RFS’s Planning for Bushfire
Protection guidelines. As a consequence of the amendment, the consent authority
will not need to consult with the RFS before it can grant consent to the carrying out
of development on bush fire prone land.

Schedules 5.2 [1] and 5.3 remove the requirement for the concurrence of the
Minister for Climate Change and the Environment when carrying out development
in the coastal zone, but only if it is development that requires development consent
under the EPA Act, is exempt development under that Act or is carried out in
accordance with a coastal zone management plan under Part 4A of the Coastal
Protection Act 1979. In those cases where the concurrence of the Minister is still
required for development in the coastal zone, Schedule 5.2 [2] and [3] provide that
the period for consideration of the proposal or application by the Minister will be
reduced from 40 to 21 days.

Schedule 5.4 [1] removes the requirement for local council approval under the Local
Government Act 1993 to operate a public car park. Schedule 5.5 makes a
consequential amendment to the Local Government (General) Regulation 2005.

Schedule 5.4 [2] and [3] provides that any concurrence that is required in relation to
a local council approval under the Local Government Act 1993 is to be assumed to
have been obtained if at least 21 days (instead of 40 days as is presently the case) has
passed since the concurrence was sought and the concurrence has not been expressly
refused during that 21-day period.

Schedule 5.4 [4]–[7] provide for the limitation of a local council’s liability for any
advice it gives, or anything it does, in relation to land that is subject to the risk of bush
fire. As a consequence of these amendments, a local council will be able to rely on
the principles contained in a manual, notified by the Minister for Planning in the
Gazette, relating to the management of land subject to the risk of bush fire.

Schedule 5.6 [1] provides that road widening orders under the Roads Act 1993 must
be reviewed by the Minister every 10 years after the date on which they are made.

Schedule 5.6 [2] removes the requirement for the concurrence of the RTA in relation
to the granting of an approval by a local council to use the footway of a classified
road for the purposes of a restaurant.

Savings and transitional provisions
Schedule 5.1 [10] amends Schedule 6 to the EPA Act to enable regulations
containing provisions of a savings and transitional nature to be made as a
consequence of the enactment of the proposed Act.

Schedule 5.1 [11] and [12] amend Schedule 6 to the EPA Act to insert savings and
transitional provisions resulting from the enactment of Schedule 5 to the proposed
Act.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

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