Part 1 Preliminary

Part 1 Preliminary

1 Name of Regulation

1 Name of Regulation

This Regulation is the Environmental Planning and Assessment Regulation 2021.

2 Commencement

2 Commencement

(1) This Regulation commences on 1 March 2022, except as provided by subsections (2) and (3), and is required to be published on the NSW legislation website.

Note—

This Regulation replaces the Environmental Planning and Assessment Regulation 2000, which is repealed on 1 March 2022 by the Subordinate Legislation Act 1989.

(2) Schedule 8 commences on 1 July 2022.

(3) Schedule 9 commences on 1 January 2022, immediately before the commencement of the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021.

s 2: Am 2022 (40), Sch 1[1].

3 Definitions

3 Definitions

(1) The Dictionary in Schedule 7 defines words used in this Regulation.

Note—

The Environmental Planning and Assessment Act 1979 and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this Regulation.

(2) Words used in this Regulation have the same meaning as in the Standard Instrument, unless otherwise defined in this Regulation.

(3) For the purposes of the Act, section 1.4(1), definition of public authority, paragraph (g), the persons specified in Schedule 1 of this Regulation are prescribed.

(4) For the purposes of the Act, section 1.4(1), definition of work, the deposit of material on a beach or land in a beach fluctuation zone, within the meaning of the Coastal Management Act 2016, is specified to be a work.

(5) For the purposes of the Act, section 1.5, definition of development, the demolition of a temporary structure is not development.

(6) In this Regulation, a reference to the consent authority’s website means—

(a) if the consent authority is a council, a local planning panel or a Sydney district or regional planning panel—the website of the council or councils of the area in which the development will be carried out, or

(b) if the consent authority is the Minister, the Independent Planning Commission or a public authority—the NSW planning portal.

(7) In this Regulation, a reference to the use of on-site fossil fuels does not include a reference to the use of back-up electricity generators.

s 3: Am 2022 (520), Sch 2[1].

4 Building Code of Australia

4 Building Code of Australia

(1) For the purposes of the Act, section 1.4(1), definition of Building Code of Australia, Volumes 1 and 2 of the National Construction Code, referred to as the Building Code of Australia, published by the Australian Building Codes Board, as in force from time to time, are prescribed.

(2) All amendments and variations of the Building Code of Australia that are from time to time made or approved by the Australian Building Codes Board in relation to New South Wales are prescribed.

(3) An amendment or variation comes into effect on the date specified by the Australian Building Codes Board for New South Wales.

(4) (Repealed)

s 4: Am 2023 (71), Sch 1.3[1].

5 Abbreviations for building materials

5 Abbreviations for building materials

The abbreviations for building materials specified in the following Table must be used in a development application or application for a complying development certificate—

| Walls | Code | Roof | Code | Floor | Code | Frame | Code | | Brick (double) | 11 | Tiles | 10 | Concrete or slate | 20 | Timber | 40 | | Brick (veneer) | 12 | Concrete or slate | 20 | Timber | 40 | Steel | 60 | | Concrete or stone | 20 | Fibre cement | 30 | Other | 80 | Aluminium | 70 | | Fibre cement | 30 | Steel | 60 | Not specified | 90 | Other | 80 | | Timber | 40 | Aluminium | 70 | | | Not specified | 90 | | Curtain glass | 50 | Other | 80 | | | | | | Steel | 60 | Not specified | 90 | | | | | | Aluminium | 70 | | | | | | | | Other | 80 | | | | | | | | Not specified | 90 | | | | | | |

6 Estimated development cost

6 Estimated development cost

(1) In this regulation, the estimated development cost, of proposed development, means the estimated cost of carrying out the development, including the following—

(a) the design and erection of a building and associated infrastructure,

(b) the carrying out of a work,

(c) the demolition of a building or work,

(d) fixed or mobile plant and equipment.

(2) The estimated development cost does not include the following—

(a) amounts payable, or the cost of land dedicated or other benefit provided, under a condition imposed under the Act, Division 7.1 or 7.2 or a planning agreement,

(b) costs relating to a part of the development that is the subject of a separate development consent or approval,

(c) land costs, including costs of marketing and selling land,

(d) costs of the ongoing maintenance or use of the development,

(e) GST.

s 6: Subst 2023 (512), Sch 1[1].

6A Determination of BASIX development cost

6A Determination of BASIX development cost

(1) This section applies if a consent authority or certifier is required to determine whether development involving an alteration of a BASIX building is BASIX development.

(2) The consent authority or certifier must use the estimated development cost, including the cost of any part of the development that is BASIX excluded development, that is specified in the development application or application for a complying development certificate, unless, in the consent authority’s or certifier’s opinion, the specified estimated development cost is not genuine or accurate.

s 6A: Ins 2023 (512), Sch 1[1].

7 Designated development—the Act, s 4.10

7 Designated development—the Act, s 4.10

(1) Development described in Schedule 3, Part 2 is declared to be designated development unless it is not designated development under Schedule 3, Part 3.

(2) If Schedule 3 is amended after a development application is made—

(a) Schedule 3, as in force when the development application was made, continues to apply to the development application, and

(b) the development application is not affected by the amendment.

(3) A reference in subsection (2) to Schedule 3 includes a reference to the Environmental Planning and Assessment Regulation 2000, Schedule 3.

Part 2 Planning instruments

Part 2 Planning instruments

Division 1 Local environmental plans

Division 1 Local environmental plans

8 Concurrence of public authorities for proposed reservation of land—the Act, s 3.37(e)

8 Concurrence of public authorities for proposed reservation of land—the Act, s 3.37(e)

(1) A planning proposal for a proposed local environmental plan must not contain a proposed reservation of land for a purpose referred to in the Act, section 3.14(1)(c) without the concurrence of the relevant authority in relation to the reservation of the land for that purpose.

(2) In this section—

relevant authority means an authority that will be specified in the proposed local environmental plan as the relevant authority to acquire the land for the purposes of the Act, section 3.15.

9 Notification of refusal to prepare planning proposal

9 Notification of refusal to prepare planning proposal

If a council refuses a request made to the council by a person for the preparation of a planning proposal under the Act, section 3.33, the council must, as soon as practicable, give the person written notice of the refusal.

10 Fee payable for costs and expenses of studies by planning proposal authority—the Act, s 3.32(3)

10 Fee payable for costs and expenses of studies by planning proposal authority—the Act, s 3.32(3)

(1) A planning proposal authority may enter into an agreement or arrangement with a person who requests the preparation of a planning proposal for the payment of the costs and expenses incurred by the authority in undertaking studies and other matters required in relation to the planning proposal.

(2) The amount payable to the planning proposal authority for the costs and expenses is—

(a) if the authority is a council—the amount set out in, or calculated in accordance with, the agreement or arrangement, or

(b) otherwise—the amount, not exceeding $25,000, determined by the authority to cover the costs and expenses reasonably incurred by the authority in undertaking the studies or other matters.

(3) Despite subsection (2)(b), the planning proposal authority and a person who requests the preparation of a planning proposal may agree on a greater amount in a particular case.

(4) An amount payable by a person under this section is payable at the time specified in a written notice to the person from the planning proposal authority.

(5) If the planning proposal authority is the Independent Planning Commission or a Sydney district or regional planning panel, the Planning Secretary may exercise the relevant planning authority’s functions under this section.

10A Planning proposal authority—the Act, section 3.32(1)(b)

10A Planning proposal authority—the Act, section 3.32(1)(b)

The Deputy Secretary of the Department is prescribed as a planning proposal authority for the purposes of the Act, Part 3.

s 10A: Ins 2025 (556), Sch 1.

11 Planning proposal authority for Lord Howe Island

11 Planning proposal authority for Lord Howe Island

For the purposes of the Act, section 3.32(1)(b), the Lord Howe Island Board under the Lord Howe Island Act 1953 is prescribed for a proposed instrument that applies to Lord Howe Island.

Division 2 Development control plans—the Act, s 3.45

Division 2 Development control plans—the Act, s 3.45

12 Form of development control plan

12 Form of development control plan

(1) A development control plan must—

(a) be written, and

(b) describe the land to which it applies, and

(c) identify the local environmental plan or deemed environmental planning instrument that applies to the land.

(2) A development control plan may include supporting maps, plans, diagrams, illustrations and other materials.

13 Public exhibition of draft development control plans

13 Public exhibition of draft development control plans

After a draft development control plan is prepared, the council must publish the following on its website—

(a) the draft development control plan,

(b) the relevant local environmental plan or deemed environmental planning instrument,

(c) the period during which submissions about the draft plan may be made to the council.

14 Approval of development control plans

14 Approval of development control plans

(1) After considering any submissions about the draft development control plan that have been duly made, the council may—

(a) approve the plan in the form in which it was publicly exhibited, or

(b) approve the plan with any alterations the council considers appropriate, or

(c) decide not to proceed with the plan.

(2) The council must publish notice of its decision on its website within 28 days after the decision is made.

(3) Notice of a decision not to proceed with a development control plan must contain the council’s reasons for the decision.

(4) A development control plan comes into effect on—

(a) the day on which the notice of the council’s decision to approve the plan is published on its website, or

(b) a later day specified in the notice.

15 Approval of development control plans for residential apartment development

15 Approval of development control plans for residential apartment development

(1) The council must not approve a draft development control plan containing provisions that apply to residential apartment development unless the council—

(a) has referred the provisions that relate to design quality to a design review panel constituted for—

(i) the council’s local government area, or

(ii) 2 or more local government areas that include the council’s area, and

(b) has considered the following—

(i) advice received from the design review panel about the provisions,

(ii) the matters specified in Parts 1 and 2 of the Apartment Design Guide.

(2) Subsections (1)(a) and (b)(i) apply only if a design review panel has been constituted for the council’s local governmental area.

(3) This section extends to—

(a) a draft amending development control plan, and

(b) a draft development control plan that the council began preparing before a design review panel was constituted.

s 15: Am 2023 (662), Sch 1[1].

16 Amendment or repeal of development control plan

16 Amendment or repeal of development control plan

(1) A council may amend a development control plan by a subsequent development control plan.

(2) A council may repeal a development control plan—

(a) by a subsequent development control plan, or

(b) by publishing notice of a decision to repeal the plan on its website.

(3) At least 14 days before repealing a development control plan under subsection (2)(b), the council must publish notice of its intention to repeal the plan, and the reasons for the repeal, on its website.

(4) The repeal of a development control plan under subsection (2)(b) takes effect on the day on which the notice under subsection (2)(b) is published on the council’s website.

17 Amendment or revocation of development control plan at Minister’s direction

17 Amendment or revocation of development control plan at Minister’s direction

(1) This section applies if, under the Act, section 3.46, the Minister directs a council—

(a) to amend a development control plan and the direction specifies that the amending plan is not required to be exhibited, or

(b) to revoke a development control plan.

(2) The council may amend or revoke the development control plan by making a subsequent development control plan.

(3) The council must, within 14 days after making a subsequent development control plan, publish notice of the making of the plan on its website.

(4) The notice must specify the following—

(a) the day on which the council made the plan,

(b) the day on which the plan takes effect under subsection (5),

(c) the name of the plan being amended or revoked,

(d) for an amendment—that the amendment is in accordance with a direction under the Act, section 3.46.

(5) The subsequent development control plan takes effect on the earlier of—

(a) the day on which the notice is given, or

(b) 14 days after the council makes the development control plan.

(6) Sections 13–16 do not apply to a development control plan made under this section.

18 Draft development control plans submitted by owners

18 Draft development control plans submitted by owners

(1) This section applies if an environmental planning instrument requires or permits a development control plan to be prepared and submitted to the relevant planning authority, as referred to in the Act, section 3.44.

(2) The relevant planning authority may request information from the owners of the land to which the development control plan relates that—

(a) the planning authority considers necessary for the purposes of making the development control plan, and

(b) relates to a relevant matter referred to in an environmental planning instrument.

(3) For the purposes of the Act, section 3.44(6), the 60-day period is extended by the number of days between—

(a) the day on which the relevant planning authority requests additional information from the owners under subsection (2), and

(b) the day on which the owners give or refuse to give the information to the relevant planning authority.

(4) If the owners refuse to give the information to the relevant planning authority, the development control plan is taken not to have been submitted to the relevant planning authority.

19 Fees for draft development control plans prepared by owners

19 Fees for draft development control plans prepared by owners

(1) If a draft development control plan is prepared and submitted to the relevant planning authority by the owners of the land to which it applies, the owners must pay the authority an assessment fee determined by the authority.

(2) If a draft development control plan is prepared by the relevant planning authority at the request of the owners, the owners must pay the authority a preparation fee determined by the authority.

(3) The assessment fee or preparation fee must not exceed the reasonable cost to the relevant planning authority of—

(a) assessing or preparing the draft development control plan, and

(b) carrying out associated studies, and

(c) publicly exhibiting the draft plan.

(4) If there is more than 1 owner, the relevant planning authority must apportion the fee between the owners.

(5) If the Minister makes a development control plan under the Act, section 3.44(5)(b), the council must pay to the Minister any assessment or preparation fee that was paid to the council in relation to the plan, if the Minister directs.

20 Publication of development control plans

20 Publication of development control plans

(1) A council must, within 28 days of making a development control plan, give a copy of the plan to the Planning Secretary.

(2) For the purposes of the Act, section 3.45(4)(b), a council must publish a development control plan on its website, including any document, map, plan, diagram or other material referred to in the plan.

21 Development control plans made by Planning Secretary

21 Development control plans made by Planning Secretary

This Part applies to a development control plan prepared by the Planning Secretary as the relevant planning authority under the Act, section 3.43, subject to the following modifications—

(a) a reference to a council is taken to be a reference to the Planning Secretary,

(b) a reference to a council’s website is taken to be a reference to the NSW planning portal,

(c) a reference to a local environmental plan or deemed environmental planning instrument is taken to be a reference to a State environmental planning policy.

Part 3 Development applications

Part 3 Development applications

22 Application of Part

22 Application of Part

This Part applies to all development applications.

Note—

This Part does not apply to applications for complying development certificates. See the Act, section 1.4, definition of development application.

23 Persons who may make development applications

23 Persons who may make development applications

(1) A development application may be made by—

(a) the owner of the land to which the development application relates, or

(b) another person, with the written consent of the owner of the land.

(2) The consent of the owner of the land is not required for a development application made by a public authority or for public notification development if the applicant complies with subsections (3) and (4).

(3) The applicant must give notice of the application—

(a) to the owner of the land before the application is made, or

(b) by publishing, no later than 14 days after the application is made, a notice in a newspaper circulating in the area in which the development will be carried out.

(4) If the applicant gives notice under subsection (3)(b), the applicant must also, no later than 14 days after the application is made—

(a) if the applicant is a public authority—publish the notice on the public authority’s website, or

(b) for public notification development—arrange for the consent authority to publish the notice on the NSW planning portal.

(4A) The consent of the owner of the land is not required for a development application for development involving mine grouting works if the works—

(a) will be carried out at a depth of 10m or more below the surface of the land, and

(b) are ancillary to other development requiring development consent.

(5) A development application relating to land owned by a Local Aboriginal Land Council may be made only with the written consent of the New South Wales Aboriginal Land Council.

(6) A lessee of Crown land may make a development application relating to Crown land only with the consent of the Crown.

(7) The consent of the Crown is not required under subsection (6) for a development application for—

(a) public notification development, or

(b) other State significant development if the development application is made by a public authority.

(7A) The consent of the owner of the land is not required for a development application for development on land identified as “Consolidated Mountain Licence Area” or “Thredbo Alpine Resort Licence Area” on the Major Resorts Licence Area Map published by the Department from time to time.

(7B) Subsection (7A) applies despite Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017, Schedule 5.

(8) In this section—

mine grouting works includes—

(a) works to stabilise land and reduce the risk of subsidence by the injection of cementitious grouting material into underground mine workings or voids created by mining, and

(b) drilling to enable the injection of the cementitious grouting material.

public authority includes an irrigation corporation, within the meaning of the Water Management Act 2000, that the Minister administering that Act has, by written order, declared to have the status of a public authority for the purposes of this section in relation to development of a kind specified in the order.

s 23: Am 2022 (702), Sch 1[1]–[3]; 2022 (790), sec 3.

24 Content of development applications

24 Content of development applications

(1) A development application must—

(a) be in the approved form, and

(b) contain all the information and documents required by—

(i) the approved form, and

(ii) the Act or this Regulation, and

Example—

The Act, section 4.12(8) requires a development application for State significant development or designated development to be accompanied by an environmental impact statement.

(c) be submitted on the NSW planning portal.

(2) The fees payable for a development application are specified in Schedule 4 and determined in accordance with Part 13, including additional fees for integrated development, development requiring concurrence and designated development.

(3) A development application is lodged—

(a) on the day on which the fees payable for the development application under this Regulation are paid, or

(b) if the applicant is notified under Part 13 that no fee is required—on the day the applicant submitted the application on the NSW planning portal.

(4) The applicant must be notified through the NSW planning portal that the development application has been lodged.

(5) If the council is not the consent authority, the consent authority must give the council a copy of—

(a) the development application, and

(b) for designated development—the environmental impact statement.

25 Information about concurrence or approvals

25 Information about concurrence or approvals

A development application must contain the following information—

(a) a list of the authorities —

(i) from which concurrence must be obtained before the development may lawfully be carried out, and

(ii) from which concurrence would have been required but for the Act, section 4.13(2A) or 4.41,

(b) a list of the approvals of the kind referred to in the Act, section 4.46(1) that must be obtained before the development may lawfully be carried out.

26 Information about affordable housing development

26 Information about affordable housing development

(1) A development application for development to which State Environmental Planning Policy (Housing) 2021, Chapter 2, Part 2, Division 1, 2 or 5 applies must specify the name of the registered community housing provider who will manage—

(a) for development to which Division 1 applies—the affordable housing component, or

(b) for development to which Division 2 applies—the boarding house, or

(c) for development to which Division 5 applies—the dwellings used for affordable housing.

(2) A development application for development for the purposes of boarding houses or co-living housing must be accompanied by a copy of the plan of management.

(3) In this section—

affordable housing component has the same meaning as in State Environmental Planning Policy (Housing) 2021, section 21(3).

s 26: Am 2022 (448), sec 3(1)–(3).

27 BASIX development

27 BASIX development

(1) A development application for BASIX development must be accompanied by—

(a) a relevant BASIX certificate for the development issued no earlier than 3 months before the day on which the development application is submitted on the NSW planning portal, and

(b) the other matters required by the BASIX certificate.

(2) If the development involves the alteration of a BASIX building that contains more than 1 dwelling, a separate BASIX certificate is required for each dwelling.

s 27: Am 2023 (531), Sch 2[1].

28 Development applications relating to Biodiversity Conservation Act 2016

28 Development applications relating to Biodiversity Conservation Act 2016

(1) A development application for biodiversity compliant development must contain the reason the development is biodiversity compliant development.

(2) A development application that is accompanied by a biodiversity development assessment report under the Biodiversity Conservation Act 2016 must contain the biodiversity credits information.

(3) A development application relating to land that is subject to a private land conservation agreement under the Biodiversity Conservation Act 2016 must contain a description of the kind of agreement and the area to which it applies.

(4) In this section—

biodiversity compliant development means—

(a) development to be carried out on biodiversity certified land under the Biodiversity Conservation Act 2016, or

(b) development to which the biodiversity certification conferred by the Threatened Species Conservation Act 1995, Schedule 7, Part 7 applies, or

(c) development for which development consent is required under a biodiversity certified EPI, within the meaning of the Threatened Species Conservation Act 1995, Schedule 7, Part 8.

Note—

The Biodiversity Conservation (Savings and Transitional) Regulation 2017, clause 43 provides that the repeal of the Threatened Species Conservation Act 1995 does not affect the operation of that Act, Schedule 7, Part 7 or 8.

biodiversity credits information, in relation to a development application, means the reasonable steps taken to obtain like-for-like biodiversity credits required to be retired under the biodiversity development assessment report, if different biodiversity credits are proposed to be used as offsets in accordance with the variation rules under the Biodiversity Conservation Act 2016.

29 Residential apartment development

29 Residential apartment development

(1) A development application that relates to residential apartment development must be accompanied by a statement by a qualified designer.

(2) The statement must—

(a) verify that the qualified designer designed, or directed the design of, the development, and

(b) explain how the development addresses—

(i) the design principles for residential apartment development, and

(ii) the objectives in Parts 3 and 4 of the Apartment Design Guide.

(3) If the development application is accompanied by a BASIX certificate for a building, the design principles for residential apartment development do not need to be addressed to the extent to which they aim—

(a) to reduce the consumption of mains-supplied potable water or greenhouse gas emissions related to the use of—

(i) the building, or

(ii) the land on which the building is located, or

(b) to improve the thermal performance of the development, or

(c) to quantify and report on the embodied emissions attributable to the development.

(4) The additional fee payable for a development application for residential apartment development that is referred to a design review panel for advice is specified in Schedule 4.

Note—

See State Environmental Planning Policy (Housing) 2021, Chapter 4 in relation to referrals of development applications to design review panels.

(5) This section does not apply to development to which State Environmental Planning Policy (Housing) 2021, Chapter 7 applies.

s 29: Am 2022 (520), Sch 2[2]; 2023 (662), Sch 1[2]–[4]; 2025 (634), Sch 1[1].

30 Mining or petroleum development

30 Mining or petroleum development

(1) This section applies to a development application that relates to mining or petroleum development on land—

(a) shown on the Strategic Agricultural Land Map, or

(b) subject to a site verification certificate.

(2) The development application must be accompanied by—

(a) for development on land shown on the Strategic Agricultural Land Map as critical industry cluster land—a current gateway certificate that applies to the development, or

(b) for development on other land—

(i) a current gateway certificate that applies to the development, or

(ii) a site verification certificate that certifies that the land on which the development will be carried out is not biophysical strategic agricultural land.

30A Infrastructure development on avoided land

30A Infrastructure development on avoided land

(1) This section applies to a development application relating to development on avoided land that is carried out under State Environmental Planning Policy (Transport and Infrastructure) 2021, Part 2.3, Division 4, 5, 12A, 17, 18, 20, 21, 23 or 24.

(2) The development application must be accompanied by a statement setting out whether the development is consistent with the Cumberland Plain Conservation Plan Guidelines, Part 2.

(3) This section does not apply to State significant development.

(4) In this section—

avoided land has the same meaning as in State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chapter 13.

Cumberland Plain Conservation Plan Guidelines has the same meaning as in State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chapter 13.

s 30A: Ins 2022 (460), Sch 1[1]. Am 2022 (752), Sch 1[1].

30B Council-related development applications

30B Council-related development applications

A council-related development application must be accompanied by—

(a) a statement specifying how the council will manage conflicts of interest that may arise in connection with the application because the council is the consent authority (a management strategy), or

(b) a statement that the council has no management strategy for the application.

s 30B: Ins 2022 (579), Sch 1[1].

31 Other documents required for certain development applications

31 Other documents required for certain development applications

(1) A development application that relates to development for which consent under the Wilderness Act 1987 is required must be accompanied by a copy of the consent.

(2) A development application that relates to development for which a site compatibility certificate is required by a SEPP must be accompanied by the site compatibility certificate.

(3) A development application made under the Act, section 4.12(3) must be accompanied by the matters that would be required under the Local Government Act 1993, section 81 if approval were sought under that Act.

(4), (5) (Repealed)

s 31: Am 2022 (40), Sch 1[2]; 2022 (333), sec 3(1); 2022 (789), Sch 1[1]; 2023 (94), sec 3(1).

32 Extract of development application for erection of building

32 Extract of development application for erection of building

(1) If a development application relates to the erection of a building, an extract of the application must be published on the NSW planning portal.

(2) The extract must—

(a) identify the applicant and the land to which the application relates, and

(b) contain a plan of the building that indicates the proposed height and external configuration of the site, if relevant for the development.

(3) This section does not apply to the following—

(a) designated development,

(b) nominated integrated development,

(c) threatened species development,

(d) Class 1 aquaculture development,

(e) State significant development.

33 Concept development applications

33 Concept development applications

(1) The information about the various stages of development, required by this Regulation to be included in a concept development application, may be deferred to a subsequent development application, with the approval of the consent authority.

(2) Section 29 applies in relation to a concept development application only if the application sets out detailed proposals for the development or part of the development.

34 Urban development in Sydney region growth centres

34 Urban development in Sydney region growth centres

(1) For the purposes of State Environmental Planning Policy (Precincts—Central River City) 2021, Chapter 3 or State Environmental Planning Policy (Precincts—Western Parkland City) 2021, Chapter 3, the Minister may, by order published in the Gazette, declare a precinct or part of a precinct to be released for urban development.

(2) The Minister must arrange for a development code to be prepared that contains guidelines that, together with the relevant growth centre structure plan, will assist environmental planning in precincts released for urban development.

(3) The Minister must consult—

(a) relevant councils about the making of declarations, and

(b) relevant councils and the public authorities the Minister considers appropriate about the preparation of a development code.

s 34: Am 2022 (40), Sch 1[3]–[5].

35 Additional requirements for development applications in certain areas of Sydney

35 Additional requirements for development applications in certain areas of Sydney

(1) A person must not apply to a consent authority for development consent to carry out development on land zoned “Employment” or “Urban” under Sydney Regional Environmental Plan No 30—St Marys, other than development referred to in that Plan, clause 20(3) or (4) or 48, unless the Minister has declared the land, or land that includes the land, to be a release area in accordance with that Plan, clause 7.

(2) A person must not apply to a consent authority for development consent to carry out development on the following land unless the application is accompanied by an assessment of the consistency of the development with the relevant plan—

(a) land in the North Wilton Precinct under State Environmental Planning Policy (Precincts—Western Parkland City) 2021, Chapter 3,

(b) land in the South East Wilton Precinct under State Environmental Planning Policy (Precincts—Western Parkland City) 2021, Chapter 3,

(b1) land in the Wilton Town Centre Precinct under State Environmental Planning Policy (Precincts—Western Parkland City) 2021, Chapter 3,

(c) declared land,

(d) land in the Mamre Road Precinct, identified as Precinct 12 on the Land Application Map under State Environmental Planning Policy (Industry and Employment) 2021, Chapter 2,

(e) land in the Western Sydney Aerotropolis under State Environmental Planning Policy (Precincts—Western Parkland City) 2021, Chapter 4,

(f) land in the Glenfield Precinct as identified on the Locality and Site Identification Map under Campbelltown Local Environmental Plan 2015,

(g) land in the Rhodes Precinct under Canada Bay Local Environmental Plan 2013,

(h) land identified as “Macquarie Park Corridor” on the Macquarie Park Corridor Map under Ryde Local Environmental Plan 2014, other than land identified as “Macquarie Park Precinct”,

(i) land in the Stage 1 Bays West Precinct under State Environmental Planning Policy (Precincts—Eastern Harbour City) 2021, Chapter 2,

(j) land identified as “Hornsby TOD Precinct” on the Key Sites Map under Hornsby Local Environmental Plan 2013.

(3) Subsection (2)(c) applies to the following development, other than development for the purposes of a single residential dwelling, on declared land only—

(a) development with an estimated development cost of more than $500,000,

(b) development that relates to an area of land of more than 2 hectares,

(c) development that is a subdivision of land that creates 2 or more lots.

(4) In this section—

declared land means land—

(a) in a precinct of a growth centre declared by the Minister under section 34 to be released for urban development, and

(b) to which the Growth Centres SEPP, clause 17 applies.

relevant plan means the following—

(a) for land in the North Wilton Precinct—the North Wilton structure plans under State Environmental Planning Policy (Precincts—Western Parkland City) 2021, Appendix 8,

(b) for land in the South East Wilton Precinct—the South East Wilton structure plans under State Environmental Planning Policy (Precincts—Western Parkland City) 2021, Appendix 7,

(b1) for land in the Wilton Town Centre Precinct—the Wilton Town Centre structure plans under State Environmental Planning Policy (Precincts—Western Parkland City) 2021, Appendix 9,

(c) for declared land—the growth centre structure plan under State Environmental Planning Policy (Precincts—Central River City) 2021, Chapter 3 or State Environmental Planning Policy (Precincts—Western Parkland City) 2021, Chapter 3 that applies to the land,

(d) for land in the Mamre Road Precinct—the Mamre Road Precinct Structure Plan published by the Department on the commencement of State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chapter 13 and available on the NSW planning portal,

(e) for land in the Western Sydney Aerotropolis—the Western Sydney Aerotropolis Plan and any precinct plan that applies to the land under State Environmental Planning Policy (Precincts—Western Parkland City) 2021, Chapter 4,

(f) for land in the Glenfield Precinct—the Glenfield Place Strategy and the Glenfield Precinct Structure Plan published on the Department’s website and in force from time to time,

(g) for land in the Rhodes Precinct—the Rhodes Place Strategy published on the Department’s website on 30 October 2021,

(h) for land in the Macquarie Park Corridor—the Macquarie Park Innovation Precinct Place Strategy published on the Department’s website on 30 September 2022,

(i) for land in the Stage 1 Bays West Precinct—the following, available on the NSW Planning Portal—

(i) the Bays West Place Strategy, as in force from time to time,

(ii) the Design Guide for Bays West Stage 1—White Bay Power Station (and Metro), as in force from time to time,

(j) for land identified as “Hornsby TOD Precinct”—the Hornsby Precinct Design Guide within the meaning of Hornsby Local Environmental Plan 2013, Part 8.

s 35: Am 2022 (40), Schs 1[6]–[12], 3[1]; 2022 (118), sec 3(1) (2); 2022 (460), Sch 1[2]; 2022 (702), Sch 1[4] [5]; 2022 (753), sec 3(1) (2); 2023 (512), Sch 1[2]; 2024 (588), Sch 1[1] [2]; 2024 (589), Sch 1[1] [2].

35A Additional requirements for development applications in Frenchs Forest Precinct

35A Additional requirements for development applications in Frenchs Forest Precinct

(1) A person must not apply to a consent authority for development consent to carry out development on land in the Frenchs Forest Precinct unless the application is accompanied by an assessment of the consistency of the proposed development with the Frenchs Forest 2041 Place Strategy.

(2) A person must not make a concept development application to a consent authority for development consent to carry out development on Site F unless the application is accompanied by a study about traffic and transport that—

(a) is endorsed by Transport for NSW, and

(b) sets out the transport infrastructure and capacity that will service Site F.

(3) In this section—

Frenchs Forest 2041 Place Strategy means the Frenchs Forest 2041 Place Strategy published on the Department’s website from time to time.

Frenchs Forest Precinct has the same meaning as in Warringah Local Environmental Plan 2011, Part 8.

Site F has the same meaning as in Warringah Local Environmental Plan 2011, Part 8.

s 35A: Ins 2022 (40), Sch 3[2].

35B Additional requirements for development applications involving contravention of development standards

35B Additional requirements for development applications involving contravention of development standards

(1) This section applies to a development application that proposes, in accordance with a relevant EPI provision, development that contravenes a development standard imposed by any environmental planning instrument.

(2) The development application must be accompanied by a document that sets out the grounds on which the applicant seeks to demonstrate that—

(a) compliance with the development standard is unreasonable or unnecessary in the circumstances, and

(b) there are sufficient environmental planning grounds to justify the contravention of the development standard.

(3) In this section—

relevant EPI provision means—

(a) clause 4.6 of a local environmental plan that adopts the provisions of the Standard Instrument, or

(b) an equivalent provision of another environmental planning instrument.

s 35B: Ins 2023 (513), Sch 1[1].

s 35B: Ins 2022 (520), Sch 2[3] (am 2023 (531), Sch 1[8]). Renumbered as sec 35BA, 2023 (662), Sch 1[5].

35BA Embodied emissions for non-residential development under Sustainable Buildings SEPP

35BA Embodied emissions for non-residential development under Sustainable Buildings SEPP

(1) A development application for non-residential development under State Environmental Planning Policy (Sustainable Buildings) 2022 must—

(a) disclose the amount of embodied emissions attributable to the development, and

(b) describe the use of low emissions construction technologies in the development.

(2) The amount disclosed under subsection (1)(a) must be determined using—

(a) the form published on the NSW planning portal as in force from time to time, and

(b) an itemised list of building materials for the development prepared by a quantity surveyor.

Example—

a bill of materials or bill of quantities

(3) The amount disclosed under subsection (1)(a) must be certified by—

(a) a quantity surveyor, or

(b) a qualified designer, or

(c) an engineer, or

(d) an assessor accredited under NABERS.

s 35BA (previously s 35B): Renumbered 2023 (662), Sch 1[5].

35C Net zero statement for non-residential development under Sustainable Buildings SEPP

35C Net zero statement for non-residential development under Sustainable Buildings SEPP

(1) This section applies to a development application for the following development—

(a) large commercial development,

(b) development to which State Environmental Planning Policy (Sustainable Buildings) 2022, section 3.4 applies.

(2) The development application must include evidence that the development—

(a) will not use on-site fossil fuels after the occupation and use of the development commence, or

(b) incorporates the infrastructure, or space for the infrastructure, necessary for the development to not use on-site fossil fuels after 1 January 2035.

Note—

Infrastructure includes plant, equipment and ventilation.

(3) The development application must include details of the following—

(a) any renewable energy generation and storage infrastructure forming part of the development,

(b) passive and technical design features that minimise energy consumption by users of the development.

(4) The development application must include the following information if available—

(a) the estimated annual energy consumption for the building in kilowatt hours per square metre of floor area,

(b) the estimated amount of emissions relating to energy use in the building, including direct and indirect emissions.

(5) The evidence and information required to be included in a development application under this section must be certified by a mechanical or electrical engineer.

s 35C: Ins 2022 (520), Sch 2[3] (am 2023 (531), Sch 1[9] [10]).

35D Energy and water use for large commercial development under Sustainable Buildings SEPP

35D Energy and water use for large commercial development under Sustainable Buildings SEPP

(1) This section applies to a development application for large commercial development.

(2) The development application must be accompanied by a copy of a NABERS commitment agreement that demonstrates the development is capable of achieving the standards for energy and water use specified in State Environmental Planning Policy (Sustainable Buildings) 2022, Schedule 3.

(3) The development application must identify the method under Section J of the Building Code of Australia that will be used to demonstrate the development is capable of achieving the standards for energy use specified in State Environmental Planning Policy (Sustainable Buildings) 2022, Schedule 3.

(4) Subsection (2), to the extent it relates to energy use, and subsection (3) do not apply to large commercial development on land to which the following local environmental plans apply—

(a) Sydney Local Environmental Plan 2012,

(b) Sydney Local Environmental Plan (Green Square Town Centre) 2013,

(c) Sydney Local Environmental Plan (Green Square Town Centre—Stage 2) 2013.

(5) Despite subsection (4), subsections (2) and (3) apply to large commercial development to the extent that the development relates to prescribed serviced apartments.

s 35D: Ins 2022 (520), Sch 2[3] (am 2023 (531), Sch 1[11] [12]).

36 Consent authority may request additional information from applicant

36 Consent authority may request additional information from applicant

(1) A consent authority that receives a development application may request additional information about the development from the applicant.

(2) A consent authority may not request additional information in relation to building work or subdivision work if the information is required to accompany an application for a construction certificate or subdivision works certificate.

(3) A consent authority’s request must—

(a) be made through the NSW planning portal, and

(b) specify a reasonable period within which the additional information must be given to the consent authority, and

(c) specify the number of days in the assessment period that have elapsed, and

(d) inform the applicant that the assessment period ceases to run, in accordance with Part 4, Division 4, during the period between—

(i) the request, and

(ii) the day on which the applicant provides the additional information or notifies, or is taken to have notified, the consent authority that the information will not be provided.

(4) The applicant may, through the NSW planning portal, notify the consent authority that the applicant will not provide the additional information.

(5) The applicant is taken to have notified the consent authority that the applicant will not provide the additional information if the applicant has not provided the information by the end of—

(a) the period specified under subsection (3)(b), or

(b) a further period allowed by the consent authority.

(6) In this section—

additional information, in relation to a development application, means information the consent authority considers necessary to properly consider the development application.

s 36: Am 2023 (350), Sch 1[1].

36A Pattern book development

36A Pattern book development

(1) This section applies to a development application for development to which State Environmental Planning Policy (Housing) 2021, Chapter 7 applies.

(2) An application to which this section applies must contain a written statement from a qualified designer stating—

(a) which of the following types of development the application relates to—

(i) development for the purposes of residential flat buildings,

(ii) development for the purposes of shop top housing, and

(b) the mid-rise housing pattern selected for that type of development, and

(c) that the proposed development will comply with the development standards, location requirements, technical drawing set and technical information specified in that pattern.

(3) In this section—

mid-rise housing pattern has the same meaning as in State Environmental Planning Policy (Housing) 2021, section 181.

s 36A: Ins 2023 (350), Sch 1[1].

37 Amendment of development application

37 Amendment of development application

(1) An applicant may, at any time before a development application is determined, apply to the consent authority for an amendment to the development application.

(2) The application must be made on the NSW planning portal.

(3) If the application relates to State significant development—

(a) the application must be in the approved form, and

(b) the applicant must have regard to the State Significant Development Guidelines in preparing the application.

(4) If the amendment relates to a BASIX certificate that accompanied the original development application only, the development application may instead be amended by submitting on the NSW planning portal—

(a) a new BASIX certificate to replace the current BASIX certificate for the original development application, or

(b) if a new document is required or a document that accompanied the original development application requires amendment—the new or amended document.

(5) If the amendment will result in the development differing materially from the description contained in the BASIX certificate that accompanied the original development application, the application must be accompanied by a new BASIX certificate that takes account of the amendment.

(6) If the amendment will result in a change to the development, the application must contain details of the change, including the name, number and date of any plans that have changed, to enable the consent authority to compare the development with the development originally proposed.

(7) A requirement to use the NSW planning portal under this section does not apply if the development application is subject to proceedings in the Court.

s 37: Am 2022 (142), Sch 1[1].

38 Determination of application for amendment of development application

38 Determination of application for amendment of development application

(1) The consent authority may, through the NSW planning portal, approve or reject an application for an amendment to a development application submitted under section 37.

(2) If the consent authority approves the amendment, the development application is taken to be lodged on the day on which the applicant applied for the amendment if the consent authority—

(a) considers the amendment not to be minor, and

(b) notifies the applicant, through the NSW planning portal, that the later day applies.

(3) If the consent authority approves an amendment to a development application for integrated development or development requiring concurrence, the consent authority must, as soon as practicable after approving the amendment, give a copy of the amended development application to the approval body or concurrence authority through the NSW planning portal.

(4) A requirement to use the NSW planning portal under this section does not apply if the development application is subject to proceedings in the Court.

s 38: Am 2023 (350), Sch 1[2].

39 Rejection of development applications

39 Rejection of development applications

(1) A consent authority may reject a development application within 14 days after receiving the application if—

(a) the application is illegible or unclear about the development consent sought, or

(b) the application does not contain the information and documents that are required by—

(i) the approved form, or

(ii) the Act or this Regulation, or

(c) for an application for State significant development—the Planning Secretary considers the application incomplete for reasons given by written notice to the applicant, or

(d) for an application for integrated development—the application does not identify all of the approvals required to be obtained, as referred to in the Act, section 4.46, before the development may be carried out, or

(e) for an application required to be accompanied by a biodiversity development assessment report under the Biodiversity Conservation Act 2016—the application is not accompanied by a report, or

(f) for an application required to be accompanied by a species impact statement under the Fisheries Management Act 1994, section 221ZW—the application is not accompanied by a statement.

(2) For the purposes of the Act, a development application is taken never to have been made if—

(a) the application is rejected by a consent authority under this section, and

(b) the determination to reject the application is not changed following a review.

(3) Immediately after rejecting a development application, the consent authority must notify, through the NSW planning portal—

(a) the applicant of the reasons for the rejection, and

(b) if the development application is for integrated development or development requiring concurrence—each relevant approval body or concurrence authority.

(4) Subsection (3)(b) applies only if the consent authority has already notified the approval body under section 42 or the concurrence authority under section 50.

s 39: Am 2023 (350), Sch 1[2].

40 Withdrawal of development applications

40 Withdrawal of development applications

(1) An applicant may, through the NSW planning portal, withdraw a development application at any time before the application is determined.

(2) An application that is withdrawn is taken never to have been made, except for the purposes of this Regulation, section 57(4) or the Act, Schedule 1.

(3) Immediately after a development application for integrated development or development requiring concurrence is withdrawn, the consent authority must notify, through the NSW planning portal, each relevant approval body or concurrence authority.

(4) Subsection (3) applies only if the consent authority has already notified the approval body under section 42 or the concurrence authority under section 50.

Division 3 Development applications for integrated development—the Act, ss 4.12, 4.47 and 4.64

Division 3 Development applications for integrated development—the Act, ss 4.12, 4.47 and 4.64

41 Application of Division

41 Application of Division

(1) This Division applies to a development application for integrated development.

(2) This Division ceases to apply to a development application for integrated development if the development application is rejected or withdrawn.

42 Consent authority to seek general terms of approval

42 Consent authority to seek general terms of approval

(1) Within 14 days after a development application for integrated development is lodged, the consent authority must—

(a) give a copy of the application and all accompanying documents to each approval body whose approval is required, and

(b) give written notice to the approval body of—

(i) the basis on which its approval is required, and

(ii) the day on which the development application was lodged, and

(iii) if known, when the application will be publicly exhibited for the purposes of the Act.

(2) The consent authority is not required to comply with subsection (1) if, within 14 days after the development application is lodged—

(a) the consent authority rejects the application, or

(b) the application is withdrawn.

(3) Immediately after the end of the public exhibition period, the consent authority must give a copy of all submissions received during the public exhibition period to each approval body.

43 Approval body may request additional information from consent authority

43 Approval body may request additional information from consent authority

(1) An approval body whose approval has been sought in relation to development may request additional information about the development from the consent authority.

(2) The approval body’s request must—

(a) be written, and

(b) specify a reasonable period within which the additional information must be given to the approval body.

(3) Immediately after receiving a request for additional information from an approval body, a consent authority must request the additional information from the applicant.

(4) The consent authority’s request must—

(a) be made through the NSW planning portal, and

(b) specify the period within which the additional information must be given to the approval body, and

(c) specify the number of days in the assessment period that have elapsed, and

(d) inform the applicant that the assessment period ceases to run, in accordance with Part 4, Division 4, during the period between—

(i) the request, and

(ii) the day on which the applicant provides the additional information or notifies, or is taken to have notified, the consent authority that the information will not be provided.

(5) Immediately after receiving the additional information from the applicant, the consent authority must give the information to the approval body.

(6) An applicant to whom a request is made may, through the NSW planning portal, notify the consent authority that the applicant will not provide the additional information.

(7) An applicant is taken to have notified the consent authority that the applicant will not provide the additional information if the applicant has not provided the information by the end of—

(a) the period specified under subsection (2)(b), or

(b) a further period allowed by the approval body.

(8) The consent authority must notify the approval body as soon as practicable after the applicant notifies, or is taken to have notified, the consent authority that the applicant will not provide the additional information.

(9) In this section—

additional information, in relation to a development application, means information the approval body considers necessary to properly consider the general terms of approval.

44 Notice of proposed consultations about Aboriginal heritage impact under National Parks and Wildlife Act 1974

44 Notice of proposed consultations about Aboriginal heritage impact under National Parks and Wildlife Act 1974

(1) If a development application relates to development that requires an Aboriginal heritage impact permit under the National Parks and Wildlife Act 1974, the Planning Secretary must notify the consent authority that Aboriginal community consultation is required under that Act.

(2) Immediately after being notified by the Planning Secretary under this section, the consent authority must give notice to the applicant that—

(a) specifies the number of days in the assessment period for the development application that have elapsed, and

(b) informs the applicant that the assessment period ceases to run, in accordance with Part 4, Division 4, during a period of Aboriginal community consultation required under the National Parks and Wildlife Act 1974.

45 Notification of general terms of approval

45 Notification of general terms of approval

(1) An approval body that receives a development application from a consent authority must give written notice to the consent authority of its decision about the general terms of approval in relation to the development application, including whether it will grant an approval—

(a) within 40 days after receiving the development application from the consent authority, or

(b) if the development must be publicly exhibited under the Act—within 21 days after—

(i) receiving from the consent authority the submissions made during the public exhibition period, or

(ii) being notified by the consent authority that no submissions were made.

(2) If the consent authority determines a development application by refusing to grant consent before the end of the period under subsection (1)—

(a) the consent authority must notify the approval body as soon as practicable after the determination, and

(b) this section ceases to apply to the development application.

(3) This section does not prevent a consent authority from considering the general terms of approval notified to the consent authority by an approval body after the end of the period under subsection (1).

46 Planning Secretary may act on behalf of approval body

46 Planning Secretary may act on behalf of approval body

(1) The Planning Secretary is authorised to act on behalf of an approval body if—

(a) the approval body has not given written notice to the consent authority under the Act, section 4.47, within the relevant assessment period, of—

(i) whether the approval body will grant the approval, or

(ii) the general terms of its approval, or

(b) the consent authority identifies an inconsistency in the general terms of approval of 2 or more approval bodies that means a general term of approval of an approval body could not be complied with without breaching a general term of approval of another approval body.

(2) As soon as practicable after deciding to act on behalf of an approval body, the Planning Secretary must give written notice to the consent authority and approval body.

(3) The assessment requirements set out in the Secretary’s Assessment Requirements for Development Requiring General Terms of Approval, as in force from time to time and published on the NSW planning portal, are prescribed as State assessment requirements.

(4) In this section—

relevant assessment period means the period of 21 or 40 days specified in section 45(1) as the period within which the approval body must notify its decision to the consent authority.

47 Planning Secretary may request additional information from applicant

47 Planning Secretary may request additional information from applicant

(1) This section applies if the Planning Secretary decides to act on behalf of an approval body as referred to in the Act, section 4.47(4A).

(2) The Planning Secretary may request additional information from the applicant.

(3) The request must—

(a) be written, and

(b) specify a reasonable period within which the additional information must be given to the Planning Secretary.

(4) An applicant to whom a request is made may give the Planning Secretary written notice that the applicant will not provide the additional information.

(5) The Planning Secretary may deal with a request for general terms of approval without the additional information from an applicant if the applicant—

(a) notifies the Planning Secretary that the additional information will not be provided, or

(b) has not provided the additional information by the end of—

(i) the period specified under subsection (3)(b), or

(ii) a further period allowed by the Planning Secretary.

(6) In this section—

additional information, in relation to a development application, means information the Planning Secretary considers necessary to properly consider the general terms of approval.

48 Notification of general terms of approval by Planning Secretary

48 Notification of general terms of approval by Planning Secretary

(1) If the Planning Secretary decides to act on behalf of an approval body as referred to in the Act, section 4.47(4A), the Planning Secretary must, within 21 days after giving notice under section 46(2), give written notice of the Planning Secretary’s decision about the general terms of approval, including whether approval will be given, to—

(a) the consent authority, and

(b) each approval body.

(2) If the consent authority determines the development application by refusing to grant consent before the end of the period under subsection (1)—

(a) the consent authority must, as soon as practicable after the determination, give written notice to the Planning Secretary, and

(b) subsection (1) ceases to apply in relation to the development application.

(3) This section does not prevent a consent authority from considering the general terms of approval notified to the consent authority by the Planning Secretary after the end of the period under subsection (1).

Division 4 Development applications for development requiring concurrence—the Act, ss 4.12, 4.13 and 4.64

Division 4 Development applications for development requiring concurrence—the Act, ss 4.12, 4.13 and 4.64

49 Application of Division

49 Application of Division

(1) This Division applies to a development application that relates to development requiring the concurrence of a concurrence authority.

(2) This Division extends, with necessary modifications, to a development application or environmental assessment that relates to development or an activity for which concurrence is required under—

(a) the Biodiversity Conservation Act 2016, section 7.12, or

(b) the Fisheries Management Act 1994, section 221ZZ.

(3) This Division, other than section 55, does not apply if a concurrence authority’s concurrence may be assumed under section 55.

(4) This Division ceases to apply to a development application if the development application is rejected or withdrawn.

50 Consent authority to seek concurrence

50 Consent authority to seek concurrence

(1) Within 14 days after a development application for development requiring concurrence is lodged, the consent authority must give each concurrence authority whose concurrence is required—

(a) a copy of the application and all accompanying documents, and

(b) written notice of the following—

(i) the basis on which its concurrence is required,

(ii) the day on which the development application was lodged,

(iii) if known, when the application will be publicly exhibited.

(2) The consent authority is not required to comply with subsection (1) if, within 14 days after the application is lodged—

(a) the consent authority rejects the application, or

(b) the application is withdrawn.

(3) If the Planning Secretary has made an election under State Environmental Planning Policy (Planning Systems) 2021, Chapter 4 in relation to the development, the consent authority must give the development application to the Planning Secretary as soon as practicable after receiving notice of the election.

(4) Immediately after the end of the public exhibition period for a development application for development requiring concurrence, the consent authority must give a copy of all submissions received during the public exhibition period to each concurrence body.

s 50: Am 2022 (40), Sch 1[13].

51 Concurrence under Biodiversity Conservation Act 2016

51 Concurrence under Biodiversity Conservation Act 2016

(1) This section applies if concurrence may be required under the Biodiversity Conservation Act 2016, Part 7 from a person (the biodiversity concurrence authority) because the development application indicates that a reduction is being sought in the number of biodiversity credits required to be retired under the biodiversity development assessment report.

(2) The development application must be given to the biodiversity concurrence authority within 10 days, instead of 14 days, after the development application is lodged.

(3) The consent authority must, within 30 days after the application is lodged, notify the biodiversity concurrence authority—

(a) whether it proposes to reduce the number of biodiversity credits required to be retired, and

(b) if so, the amount of and the reasons for the reduction, as referred to in the Biodiversity Conservation Act 2016, section 7.13(4).

(4) If the concurrence of the biodiversity concurrence authority is required because the consent authority proposes to reduce the number of biodiversity credits, the reference in section 53(1)(a) to a concurrence authority giving notice of its decision to a consent authority within 40 days after receiving the development application is taken to be a reference to giving notice within 50 days after the development application is lodged.

52 Concurrence authority may request additional information from consent authority

52 Concurrence authority may request additional information from consent authority

(1) A concurrence authority whose concurrence has been sought in relation to development may request additional information about the development from the consent authority.

(2) The request must—

(a) be written, and

(b) specify a reasonable period within which the additional information must be given to the concurrence authority.

(3) Immediately after receiving a request for additional information from a concurrence authority, a consent authority must request the additional information from the applicant.

(4) The consent authority’s request must—

(a) be written, and

(b) specify the period within which the additional information must be given to the concurrence authority, and

(c) specify the number of days in the assessment period that have elapsed, and

(d) inform the applicant that the assessment period ceases to run, in accordance with Part 4, Division 4, during the period between—

(i) the request, and

(ii) the day on which the applicant provides the information or notifies, or is taken to have notified, the consent authority that the information will not be provided.

(5) Immediately after receiving the additional information from the applicant, the consent authority must give the information to the concurrence authority.

(6) The applicant to whom a request is made may, through the NSW planning portal, notify the consent authority that the applicant will not provide the additional information.

(7) The applicant is taken to have notified the consent authority that the applicant will not provide the additional information if the applicant has not provided the information by the end of—

(a) the period specified under subsection (2)(b), or

(b) a further period allowed by the concurrence authority.

(8) The consent authority must notify the concurrence authority as soon as practicable after the applicant notifies, or is taken to have notified, the consent authority that the applicant will not provide the additional information.

(9) In this section—

additional information, in relation to development, means information the concurrence authority considers necessary to properly consider if concurrence should be granted.

53 Notification of decision

53 Notification of decision

(1) A concurrence authority that receives a development application from a consent authority must give written notice to the consent authority of its decision on the development application—

(a) within 40 days after receiving the development application from the consent authority, or a lesser period, if any, provided for in an environmental planning instrument, or

(b) if the development must be publicly exhibited under the Act—within 21 days after—

(i) receiving from the consent authority the submissions made during the public exhibition period, or

(ii) being notified by the consent authority that no submissions were made.

(2) If the consent authority determines a development application by refusing to grant consent before the end of the period under subsection (1)—

(a) the consent authority must notify the concurrence authority as soon as practicable after the determination, and

(b) this section ceases to apply to the development application.

(3) This section does not prevent a consent authority from considering a concurrence authority’s decision on a development application that is notified to the consent authority after the end of the relevant period under subsection (1).

54 Notice of reasons for concurrence decisions

54 Notice of reasons for concurrence decisions

If the concurrence authority grants concurrence subject to a condition, or refuses concurrence, the concurrence authority must give written notice to the consent authority of the reasons for the imposition of the condition or the refusal.

55 Circumstances in which concurrence may be assumed

55 Circumstances in which concurrence may be assumed

(1) A concurrence authority may, by written notice given to the consent authority—

(a) inform the consent authority that concurrence may be assumed, subject to the qualifications or conditions specified in the notice, and

(b) amend or revoke an earlier notice under this section.

(2) A consent granted by a consent authority that has assumed concurrence in accordance with a notice under this section is as valid and effective as if concurrence had been given.

Division 5 Development applications for designated development, nominated integrated development, threatened species development, Class 1 aquaculture development and State significant development—the Act, ss 4.12, 4.47 and 4.64

Division 5 Development applications for designated development, nominated integrated development, threatened species development, Class 1 aquaculture development and State significant development—the Act, ss 4.12, 4.47 and 4.64

56 Notice of development applications

56 Notice of development applications

(1) This section applies to a development application for the following only—

(a) designated development,

(b) nominated integrated development,

(c) threatened species development,

(d) Class 1 aquaculture development,

(e) State significant development.

(2) As soon as practicable after a development application is lodged, the consent authority must—

(a) publish notice of the application on the consent authority’s website, and

(b) give notice of the application to—

(i) the public authorities that, in the consent authority’s opinion, may have an interest in the determination of the application, and

(ii) the persons that own or occupy the land adjoining the land to which the application relates.

(3) Subsection (2)(b)(i) does not require notice to be given to relevant concurrence authorities or approval bodies.

(4) Subsection (2)(b)(ii) does not apply to a notice that relates to an application for public notification development or designated development.

(5) The fee payable to a consent authority for the giving of notice under this section, other than for State significant development, is specified in Schedule 4.

(6) The notice under subsection (2)(a) and (b) must contain the following information—

(a) a description and address of the land on which the development will be carried out,

(b) the name of the applicant and the consent authority,

(c) a description of the development,

(d) whether the development is designated development, nominated integrated development, threatened species development, Class 1 aquaculture development or State significant development,

(e) a statement that the application and the documents accompanying the application, including any environmental impact statement, are available on the consent authority’s website for the minimum period required under the Act,

(f) a statement that a person may, during the public exhibition period, make submissions to the consent authority about the application and that the submissions must specify the grounds of objection, if any,

(g) for development that is also integrated development—a statement of the required approvals and the approval bodies for the approvals,

(h) for State significant development—whether the Minister has directed that the Independent Planning Commission must hold a public hearing,

(i) for designated development—

(i) a statement that, unless the Independent Planning Commission has held a public hearing, a person who objected to the development by making a submission and who is dissatisfied with the determination of the consent authority to grant development consent, may appeal to the Court, and

(ii) a statement that, if the Independent Planning Commission holds a public hearing, the Commission’s determination of the application is final and not subject to appeal.

(7) For the purposes of this section—

(a) if land is a lot in a freehold strata scheme—a notice to the owners corporation is taken to be a notice to the owner or occupier of each lot in the strata scheme, and

(b) if land is a lot in a leasehold strata scheme—a notice to the lessor under the leasehold strata scheme and to the owners corporation is taken to be a notice to the owner or occupier of each lot in the strata scheme, and

(c) if land is owned or occupied by more than 1 person—a notice to 1 owner or 1 occupier is taken to be a notice to all owners and occupiers of the land.

(8) In this section—

freehold strata scheme and leasehold strata scheme have the same meaning as in the Strata Schemes Development Act 2015.

57 Notice not required in certain circumstances

57 Notice not required in certain circumstances

(1) This section applies to a development application for the following that has been lodged but not determined by the consent authority—

(a) nominated integrated development,

(b) threatened species development,

(c) Class 1 aquaculture development.

(2) The consent authority may decide not to comply with section 56 in relation to an amended development application if the consent authority—

(a) complied with section 56 in relation to the development application (the original development application) before it was amended, and

(b) considers that the amended development application differs from the original development application in minor ways only.

(3) Compliance with section 56 in relation to the original development application is taken to be compliance in relation to the amended development application.

(4) The consent authority must give written notice to the applicant of its decision under this section no later than the notice of the determination of the amended development application is given under the Act, section 4.18.

58 Exhibition of notice of designated development application

58 Exhibition of notice of designated development application

A notice for a development application for designated development must be exhibited on the land to which the development application relates and must—

(a) be displayed on a signpost or board, and

(b) be clear and legible, and

(c) have the heading “DEVELOPMENT PROPOSAL” in capital letters and bold type, and

(d) contain the following information—

(i) a statement that the development application has been lodged,

(ii) the name of the applicant,

(iii) a brief description of the development application,

(iv) a statement that the development application and the documents accompanying the development application, including any environmental impact statement, are available on the consent authority’s website for the minimum period required under the Act for designated development, and

(e) if practicable, be able to be read from a public place.

59 Additional requirements for State significant development—the Act, s 4.39

59 Additional requirements for State significant development—the Act, s 4.39

(1) The Planning Secretary must give an applicant for State significant development a copy of the submissions, or a summary of the submissions, received in relation to the application during the public exhibition period.

(2) The Planning Secretary may, by written notice—

(a) identify the issues raised in the submissions that the Planning Secretary considers require a response from the applicant, and

(b) require the applicant to give a written response, and

(c) require the applicant to have regard to the State Significant Development Guidelines in preparing the response.

(3) The written notice must specify a reasonable period within which the response must be given to the Planning Secretary.

(4) The applicant may, through the NSW planning portal, notify the Planning Secretary that the applicant will not give a response.

(5) The applicant is taken to have notified the Planning Secretary that the applicant will not give a response if the applicant has not provided the information by the end of—

(a) the period specified under subsection (3), or

(b) a further period allowed by the Planning Secretary.

(6) The Planning Secretary must publish the following documents relating to a development application for State significant development on the NSW planning portal—

(a) the Planning Secretary’s environmental assessment requirements under Part 8, Division 2,

(b) the application, including accompanying documents and information and any amendments made to the application,

(c) submissions received during the public exhibition period and any response from the applicant received under subsection (2),

(d) any environmental assessment report prepared by the Planning Secretary,

(e) any development consent or modification to a development consent,

(f) any application made for a modification to development consent, including accompanying documents and information,

(g) documents or information given to the Planning Secretary by the applicant in response to submissions.

s 59: Am 2022 (142), Sch 1[1]; 2023 (350), Sch 1[1].

60 Submissions about designated development to be given to Planning Secretary

60 Submissions about designated development to be given to Planning Secretary

The consent authority must, immediately after the public exhibition period for a development application for designated development, give a copy of any submissions to the Planning Secretary, unless the Minister is the consent authority.

Part 4 Determination of development applications

Part 4 Determination of development applications

61 Additional matters that consent authority must consider

61 Additional matters that consent authority must consider

(1) In determining a development application for the demolition of a building, the consent authority must consider the Australian Standard AS 2601—2001: The Demolition of Structures.

(2) In determining a development application for the carrying out of development on land that is subject to a subdivision order under the Act, Schedule 7, the consent authority must consider—

(a) the subdivision order, and

(b) any development plan prepared for the land by a relevant authority under that Schedule.

(3) In determining a development application for development on the following land, the consent authority must consider the Dark Sky Planning Guideline—

(a) land in the local government area of Coonamble, Gilgandra, Warrumbungle Shire or Dubbo Regional,

(b) land less than 200 kilometres from the Siding Spring Observatory, if the development is—

(i) State significant development, or

(ii) designated development, or

(iii) development specified in State Environmental Planning Policy (Planning Systems) 2021, Schedule 6.

(4) In determining a development application for development for the purposes of a manor house or multi dwelling housing (terraces), the consent authority must consider the Low Rise Housing Diversity Design Guide for Development Applications published by the Department in July 2020.

(5) Subsection (4) applies only if the consent authority is satisfied there is not a development control plan that adequately addresses the development.

(6) In determining a development application for development for the erection of a building for residential purposes on land in Penrith City Centre, within the meaning of Penrith Local Environmental Plan 2010, the consent authority must consider the Development Assessment Guideline: An Adaptive Response to Flood Risk Management for Residential Development in the Penrith City Centre published by the Department on 28 June 2019.

(7)–(8) (Repealed)

s 61: Am 2022 (39), sec 3(1) (2); 2022 (40), Sch 1[14]; 2022 (142), Sch 1[2]; 2022 (656), sec 3(1) (2); 2022 (702), Sch 1[6]; 2023 (67), sec 3(1).

62 Consideration of fire safety

62 Consideration of fire safety

(1) This section applies to the determination of a development application for a change of building use for an existing building if the applicant does not seek the rebuilding or alteration of the building.

(2) The consent authority must—

(a) consider whether the fire protection and structural capacity of the building will be appropriate to the building’s proposed use, and

(b) not grant consent to the change of building use unless the consent authority is satisfied that the building complies, or will, when the development is completed, comply, with the Category 1 fire safety provisions that are applicable to the building’s proposed use.

(3) Subsection (2)(b) does not apply to the extent to which an exemption from a provision of the Building Code of Australia or a fire safety standard is in force under the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021.

63 Considerations for erection of temporary structures

63 Considerations for erection of temporary structures

In determining a development application for the erection of a temporary structure, the consent authority must consider whether—

(a) the fire protection and structural capacity of the structure will be appropriate to the proposed use of the structure, and

(b) the ground or other surface on which the structure will be erected will be sufficiently firm and level to sustain the structure while in use.

64 Consent authority may require upgrade of buildings

64 Consent authority may require upgrade of buildings

(1) This section applies to the determination of a development application that involves the rebuilding or alteration of an existing building if—

(a) the proposed building work and previous building work together represent more than half of the total volume of the building, or

(b) the measures contained in the building are inadequate—

(i) to protect persons using the building, if there is a fire, or

(ii) to facilitate the safe egress of persons using the building from the building, if there is a fire, or

(iii) to restrict the spread of fire from the building to other buildings nearby.

(2) The consent authority must consider whether it is appropriate to require the existing building to be brought into total or partial conformity with the Building Code of Australia.

(3) In this section—

previous building work means building work completed or authorised within the previous 3 years.

total volume of a building means the volume of the building before the previous building work commenced and measured over the building’s roof and external walls.

65 Consideration of conservation plan for development at Sydney Opera House

65 Consideration of conservation plan for development at Sydney Opera House

(1) In determining a development application for development at the Sydney Opera House to which the Act, Part 4 applies, the consent authority must consider the provisions of the Sydney Opera House Conservation Plan.

(2) In this section—

Sydney Opera House has the same meaning as Opera House in the Sydney Opera House Trust Act 1961.

Sydney Opera House Conservation Plan means the conservation management plan for the Sydney Opera House entitled “Respecting the Vision”, 4th edition, published in July 2017 on the Sydney Opera House Trust’s website.

65A Factors not of relevance to development application—the Act, s 4.15(1A)(b)

65A Factors not of relevance to development application—the Act, s 4.15(1A)(b)

(1) For the purpose of the consideration of a matter referred to in section 4.15(1)(b), the significant likely impacts of other development for which consent is not sought in the development application are declared to be factors that are not of relevance to the development the subject of the development application.

(2) In this section—

other development means development that is likely to be, or will be, required to be carried out as a result of the development that is the subject of the development application.

s 65A: Ins 2025 No 71, Sch 2[3].

66 Contributions plans for certain areas in Sydney—the Act, s 4.16(1)

66 Contributions plans for certain areas in Sydney—the Act, s 4.16(1)

(1) A development application for development on the following land must not be determined by the consent authority unless a contributions plan has been approved for the land to which the application relates—

(a) land in Zone IN1 General Industrial under State Environmental Planning Policy (Industry and Employment) 2021, Chapter 2,

(b) land in a residential, business or industrial zone, Zone C4 Environmental Living or Zone 1 Urban Development under a Precinct Plan in State Environmental Planning Policy (Precincts—Central River City) 2021, Chapter 3 or State Environmental Planning Policy (Precincts—Western Parkland City) 2021, Chapter 3,

(c) land shown on the Land Application Map under State Environmental Planning Policy (Precincts—Western Parkland City) 2021, Chapter 4.

(2) The consent authority may dispense with the requirement for a contributions plan if—

(a) the consent authority considers the development application is of a minor nature, or

(b) the developer has entered into a planning agreement for the matters that may be the subject of a contributions plan.

(3) (Repealed)

s 66: Am 2022 (40), Sch 1[15]–[17]; 2022 (142), Sch 1[3]; 2025 (501), Sch 1[1].

66A Council-related development applications—the Act, s 4.16(11)

66A Council-related development applications—the Act, s 4.16(11)

(1) A council-related development application must not be determined by the consent authority unless—

(a) the council has adopted a conflict of interest policy, and

(b) the council considers the policy in determining the application.

(2) In this section—

conflict of interest policy means a policy that—

(a) specifies how a council will manage conflicts of interest that may arise in connection with council-related development applications because the council is the consent authority, and

(b) complies with the Council-related Development Application Conflict of Interest Guidelines published by the Department and available on the NSW planning portal, as in force from time to time.

s 66A: Ins 2022 (579), Sch 1[2]. Am 2023 (95), sec 4(1) (2).

67 Modification or surrender of development consent or existing use right—the Act, s 4.17(5)

67 Modification or surrender of development consent or existing use right—the Act, s 4.17(5)

(1) A development consent or existing use right may be modified or surrendered by written notice to the consent authority.

(2) The notice must contain the following information—

(a) the name and address of the person giving the notice,

(b) the address and folio identifier of the land to which the consent or right relates,

(c) a description of the consent or right to be modified or surrendered,

(d) whether the consent or right will be modified, including details of the modification, or surrendered,

(e) if the person giving the notice is not the owner of the land—a statement signed by the owner of the land that the owner consents to the modification or surrender of the consent or right.

(3) The notice takes effect when the consent authority gives written notice to the person giving the notice that the consent authority received the notice.

(4) The notice operates, according to its terms, to modify or surrender the development consent or existing use right to which it relates.

(5) The consent of the owner is not required under subsection (2)(e) if the consent of the owner of the land was not required under section 23 to make the application for the development consent.

(6) In this section—

existing use right means a right conferred by the Act, Division 4.11.

68 Voluntary surrender of development consent—the Act, s 4.63

68 Voluntary surrender of development consent—the Act, s 4.63

(1) A development consent may be voluntarily surrendered by written notice to the consent authority.

(2) The notice must contain the following information—

(a) the name and address of the person giving the notice,

(b) the address and folio identifier of the land to which the development consent relates,

(c) a description of the development consent to be surrendered,

(d) if the person giving the notice is not the owner of the land—a statement signed by the owner of the land that the owner consents to the surrender of the development consent,

(e) whether any part of the development to which the development consent relates has commenced.

(3) If any part of the development to which the development consent relates has commenced (the commenced development), the notice must also set out the circumstances that indicate—

(a) the commenced development was carried out in compliance with—

(i) each condition of the development consent that is relevant to the commencement development, or

(ii) an agreement with the consent authority relating to the development consent that is relevant to the commenced development, and

(b) the surrender of the development consent will not have an adverse impact on a third party or the locality.

(4) The notice takes effect when the consent authority notifies the person that the consent authority is satisfied that—

(a) no part of the development to which the development consent relates has commenced, or

(b) if there is commenced development—

(i) it was carried out in compliance with each condition of the development consent, or an agreement with the consent authority relating to the development consent, that is relevant to the commenced development, and

(ii) the surrender of the development consent will not have an adverse impact on a third party or the locality.

(5) The notice operates, according to its terms, to surrender the development consent to which it relates.

(6) The consent of the owner is not required under subsection (2)(d) if the consent of the owner of the land was not required under section 23 to make the application for the development consent.

pt.4-div.2-sdiv.1 Development generally

Subdivision 1 Development generally

69 Compliance with Building Code of Australia and insurance requirements under Home Building Act 1989

69 Compliance with Building Code of Australia and insurance requirements under Home Building Act 1989

(1) It is a condition of a development consent for development that involves building work that the work must be carried out in accordance with the requirements of the Building Code of Australia.

(2) It is a condition of a development consent for development that involves residential building work for which a contract of insurance is required under the Home Building Act 1989, Part 6 that a contract of insurance is in force before building work authorised to be carried out by the consent commences.

(3) It is a condition of a development consent for a temporary structure used as an entertainment venue that the temporary structure must comply with the Building Code of Australia, Volume 1, Part B1 and NSW Part I5.

(4) In subsection (1), a reference to the Building Code of Australia is a reference to the Building Code of Australia as in force on the relevant date.

(5) In subsection (3), a reference to the Building Code of Australia is a reference to the Building Code of Australia as in force on the day on which the application for development consent was made.

(6) This section does not apply—

(a) to the extent to which an exemption from a provision of the Building Code of Australia or a fire safety standard is in force under the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021, or

(b) to the erection of a temporary building, other than a temporary structure to which subsection (3) applies.

(7) In this section—

relevant date has the same meaning as in the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021, section 19.

s 69: Am 2023 (30), Sch 2[1] [2]; 2023 (71), Sch 1.3[2].

70 Erection of signs

70 Erection of signs

(1) This section applies to a development consent for development involving building work, subdivision work or demolition work.

(2) It is a condition of the development consent that a sign must be erected in a prominent position on a site on which building work, subdivision work or demolition work is being carried out—

(a) showing the name, address and telephone number of the principal certifier for the work, and

(b) showing the name of the principal contractor, if any, for the building work and a telephone number on which the principal contractor may be contacted outside working hours, and

(c) stating that unauthorised entry to the work site is prohibited.

(3) The sign must be—

(a) maintained while the building work, subdivision work or demolition work is being carried out, and

(b) removed when the work has been completed.

(4) This section does not apply in relation to—

(a) building work, subdivision work or demolition work carried out inside an existing building, if the work does not affect the external walls of the building, or

(b) Crown building work certified to comply with the Building Code of Australia under the Act, Part 6.

71 Notification of Home Building Act 1989 requirements

71 Notification of Home Building Act 1989 requirements

(1) This section applies to a development consent for development involving residential building work if the principal certifier is not the council.

(2) It is a condition of the development consent that residential building work must not be carried out unless the principal certifier for the development to which the work relates has given the council written notice of the following—

(a) for work that requires a principal contractor to be appointed—

(i) the name and licence number of the principal contractor, and

(ii) the name of the insurer of the work under the Home Building Act 1989, Part 6,

(b) for work to be carried out by an owner-builder—

(i) the name of the owner-builder, and

(ii) if the owner-builder is required to hold an owner-builder permit under the Home Building Act 1989—the number of the owner-builder permit.

(3) If the information notified under subsection (2) is no longer correct, it is a condition of the development consent that further work must not be carried out unless the principal certifier has given the council written notice of the updated information.

(4) This section does not apply in relation to Crown building work certified to comply with the Building Code of Australia under the Act, Part 6.

72 Entertainment venues

72 Entertainment venues

(1) The requirements specified in this section are conditions of development consent for the use of a building as an entertainment venue.

(2) During a stage performance at an entertainment venue, there must be at least 1 suitably trained person in attendance in the stage area at all times for the purpose of operating, if necessary, a proscenium safety curtain, drencher system and smoke exhaust system.

(3) If a proscenium safety curtain is installed at an entertainment venue, there must be no obstruction to the opening or closing of the curtain and the curtain must be operable at all times.

(4) When a film is being screened at an entertainment venue, there must be at least 1 person in attendance at the entertainment venue who is trained in—

(a) the operation of the projectors being used, and

(b) the use of the fire fighting equipment in the room in which the projectors are installed (the projection room).

(5) If the projection room is not fitted with automatic fire suppression equipment and a smoke detection system, in accordance with the Building Code of Australia, the person required by subsection (4) to be in attendance must be in the projection suite in which the projection room is located during the screening of a film.

(6) A member of the public must not be present in the projection suite during the screening of a film.

(7) An entertainment venue must not screen a nitrate film.

(8) An emergency evacuation plan must be prepared, maintained and implemented for a building, other than a temporary structure, used as an entertainment venue.

(9) The emergency evacuation plan must specify the following—

(a) the location of all exits, and fire protection and safety equipment, for the part of the building used as an entertainment venue,

(b) the number of fire safety officers that must be present during performances,

(c) how the audience will be evacuated from the building if there is a fire or other emergency.

(10) A fire safety officer appointed to be present during a performance must have appropriate training in evacuating persons from the building if there is a fire or other emergency.

(11) In this section—

exit has the same meaning as in the Building Code of Australia.

73 Maximum capacity signage

73 Maximum capacity signage

(1) This section applies to a development consent, including an existing development consent, for the following uses of a building, if the development consent contains a condition specifying the maximum number of persons permitted in the building—

(a) an entertainment venue,

(b) a function centre,

(c) a pub,

(d) a registered club,

(e) a restaurant or cafe.

(2) It is a condition of the development consent that a sign must be displayed in a prominent position in the building stating the maximum number of persons, as specified in the development consent, that are permitted in the building.

74 Shoring and adequacy of adjoining property

74 Shoring and adequacy of adjoining property

(1) This section applies to a development consent for development that involves excavation that extends below the level of the base of the footings of a building, structure or work on adjoining land, including a structure or work in a road or rail corridor.

(2) It is a condition of the development consent that the person having the benefit of the development consent must, at the person’s own expense—

(a) protect and support the building, structure or work on adjoining land from possible damage from the excavation, and

(b) if necessary, underpin the building, structure or work on adjoining land to prevent damage from the excavation.

(3) This section does not apply if—

(a) the person having the benefit of the development consent owns the adjoining land, or

(b) the owner of the adjoining land gives written consent to the condition not applying.

75 Fulfilment of BASIX commitments

75 Fulfilment of BASIX commitments

It is a condition of a development consent for the following that each commitment listed in a relevant BASIX certificate is fulfilled—

(a) BASIX development,

(b) BASIX optional development, if the development application was accompanied by a BASIX certificate.

76 Deferred commencement consent

76 Deferred commencement consent

(1) A development consent with a deferred commencement, as referred to in the Act, section 4.16(3), must be clearly identified as a “deferred commencement” consent, whether by using the expression, referring to that section or otherwise.

(2) A deferred commencement consent must clearly distinguish between—

(a) conditions that relate to matters about which the consent authority must be satisfied before the consent can operate (the relevant matters), and

(b) other conditions.

(3) A consent authority may specify the period within which the applicant must produce sufficient evidence to the consent authority to enable it to be satisfied about the relevant matters.

(4) If the applicant produces evidence in accordance with this section, the consent authority must notify the applicant whether it is satisfied about the relevant matters.

(5) If the consent authority does not notify the applicant within 28 days after the applicant produces the evidence, the consent authority is taken to have notified the applicant, on the day on which the period expires, that it is not satisfied about the relevant matters.

(6) Subsection (5) applies for the purposes of the Act, section 8.7 only.

77 Conditions for ancillary aspects of development

77 Conditions for ancillary aspects of development

(1) If a consent authority grants development consent subject to a condition referred to in the Act, section 4.17(2) in relation to an ancillary aspect of the development, the consent authority may specify the period within which the ancillary aspect must be carried out to the satisfaction of the consent authority or a person specified by the consent authority.

(2) The applicant may produce evidence to the consent authority, or to the person specified by the consent authority, sufficient to enable the consent authority or the person to be satisfied in relation to the ancillary aspect of the development.

(3) For the purposes of the Act, section 4.17(3), the relevant period is the period of 28 days after the applicant’s evidence is produced to the consent authority or a person specified by the consent authority.

78 Conditions for State significant development

78 Conditions for State significant development

A development consent may be granted subject to a condition referred to in the Act, section 4.17(4A) or (4B) only if the development is State significant development.

79 Review conditions—the Act, s 4.17(10C)

79 Review conditions—the Act, s 4.17(10C)

(1) A development consent that is granted subject to a reviewable condition may, as referred to in the Act, section 4.17(10B), be granted subject to a further condition (a review condition) if the development consent relates to the following kinds of development—

(a) an entertainment venue,

(b) a function centre,

(c) a pub,

(d) a registered club,

(e) a restaurant or cafe.

(2) A development consent that is subject to a review condition must contain the following—

(a) a statement that the development consent is subject to the review condition and the purpose of the review condition,

(b) a statement that the consent authority will carry out the reviews,

(c) when, or at what intervals, the reviews must be carried out.

(3) The consent authority must give written notice to the operator of a development that is subject to a review condition at least 14 days before carrying out a review.

(4) The consent authority may notify other persons of the review as it considers appropriate.

(5) The consent authority must take into account submissions that are received from any person within 14 days after notice of a review is given to the person.

79A Energy and water use for large commercial development under Sustainable Buildings SEPP

79A Energy and water use for large commercial development under Sustainable Buildings SEPP

(1) This section applies to a development consent for large commercial development under State Environmental Planning Policy (Sustainable Buildings) 2022.

(2) It is a condition of the development consent that, within the relevant period, the following must be given to the consent authority using the NSW planning portal—

(a) an assessment of the NABERS rating for water use achieved by the development, prepared by an assessor accredited under NABERS,

(b) an assessment of the NABERS rating for energy use achieved by the development, prepared by an assessor accredited under NABERS,

(c) evidence that the offsets required for the development under this section have been—

(i) for ACCUs or large-scale generation certificates—purchased and surrendered, or

(ii) for Climate Active certification—obtained.

(3) The assessment under subsection (2)(b) must specify the following—

(a) the rated annual electricity use,

(b) if the development will not achieve the energy use standards—the difference between the rated annual electricity use and the energy use standards, calculated for the first 5 years of operation,

(c) the rated use of on-site fossil fuels and the associated amount of carbon dioxide measured as carbon dioxide equivalent or CO2e, calculated for the first 10 years of operation.

(4) The consent authority must determine—

(a) the type of offsets required for particular development according to the following—

(i) ACCUs or Climate Active certification may be required if the consent authority is satisfied the development will use on-site fossil fuels,

(ii) large-scale generation certificates may be required if the consent authority is satisfied the development will not achieve the energy use standards, and

(b) the number of offsets required for particular development, using the assessment provided under subsection (2)(b).

(4A) Subsections (2)(b) and (c), (3) and (4) do not apply to large commercial development on land to which the following local environmental plans apply—

(a) Sydney Local Environmental Plan 2012,

(b) Sydney Local Environmental Plan (Green Square Town Centre) 2013,

(c) Sydney Local Environmental Plan (Green Square Town Centre—Stage 2) 2013.

(4B) Despite subsection (4A), subsections (2)(b) and (c), (3) and (4) apply to large commercial development to the extent that the development relates to prescribed serviced apartments.

(5) In this section—

ACCU means an Australian Carbon Credit Unit issued by the Clean Energy Regulator under the Carbon Credits (Carbon Farming Initiative) Act 2011 of the Commonwealth.

Climate Active certification means Climate Active certification under the Climate Active Carbon Neutral Standard for organisations, buildings or precincts.

energy use standards means the standards for energy use specified in State Environmental Planning Policy (Sustainable Buildings) 2022, Schedule 3.

large-scale generation certificate means a large-scale generation certificate created under the Renewable Energy (Electricity) Act 2000 of the Commonwealth.

offset means an ACCU, Climate Active certification or a large-scale generation certificate.

relevant period, for a building, means 24 months from—

(a) the day on which an occupation certificate is issued, if the development requires an occupation certificate, or

(b) the day on which the building may be occupied or used, if the development does not require an occupation certificate.

s 79A: Ins 2022 (520), Sch 2[4] (am 2023 (531), Sch 1[13]–[15]).

79B Extension of relevant period for compliance with development consent condition for large commercial development

79B Extension of relevant period for compliance with development consent condition for large commercial development

(1) The person having the benefit of the development consent to which section 79A applies may apply to the consent authority for an extension of up to 12 months of the relevant period.

(2) The application must be made through the NSW planning portal.

(3) The consent authority may grant an extension only if satisfied that the extension is reasonable in the circumstances.

(4) In deciding whether an extension is reasonable in the circumstances, the consent authority—

(a) must consider the following—

(i) whether less than 75% of the building will be occupied at the end of the relevant period,

(ii) whether the development is staged development,

(iii) the measures already taken by the applicant to comply with the development condition, and

(b) may consider the following—

(i) a change in ownership of the development,

(ii) delays in the construction of development that is staged development,

(iii) delays in relation to the purchase, surrender or obtaining of offsets,

(iv) other relevant matters.

(5) A consent authority is taken to have refused an application for an extension if it has not determined the application within 30 days.

s 79B: Ins 2022 (520), Sch 2[4] (am 2023 (531), Sch 1[16]).

pt.4-div.2-sdiv.2 Development permitted under State Environmental Planning Policy (Housing) 2021

Subdivision 2 Development permitted under State Environmental Planning Policy (Housing) 2021

80 Definitions

80 Definitions

In this Subdivision—

Aboriginal Housing Office means the Aboriginal Housing Office constituted by the Aboriginal Housing Act 1998.

Affordable Housing Guidelines means the NSW Affordable Housing Ministerial Guidelines published by the Department of Community and Justice and approved by the Minister for Families, Communities and Disability Services from time to time.

Land and Housing Corporation means the New South Wales Land and Housing Corporation constituted under the Housing Act 2001.

registered community housing provider has the same meaning as in the Community Housing Providers (Adoption of National Law) Act 2012, section 13.

Registrar of Community Housing means the Registrar of Community Housing appointed under the Community Housing Providers (Adoption of National Law) Act 2012, section 10.

s 80: Am 2023 (662), Sch 1[6].

81 Build-to-rent housing

81 Build-to-rent housing

(1) This section applies to a development consent for development permitted under State Environmental Planning Policy (Housing) 2021, Chapter 3, Part 4.

(2) It is a condition of the development consent that during the relevant period—

(a) the buildings to which the development consent relates must contain at least 50 dwellings occupied, or intended to be occupied, by individuals under residential tenancy agreements, and

(b) the tenanted component of the buildings to which the development consent relates must not be subdivided into separate lots, and

(c) (Repealed)

(d) the tenanted component of the buildings to which the development consent relates must—

(i) be owned and controlled by 1 person only, and

(ii) be operated by 1 managing agent only, who provides on-site management.

(3) In this section—

relevant period has the same meaning as in State Environmental Planning Policy (Housing) 2021, section 73.

tenanted component has the same meaning as in State Environmental Planning Policy (Housing) 2021.

s 81: Am 2022 (40), Sch 1[18] [19]; 2023 (662), Sch 1[7] [8].

82 In-fill affordable housing

82 In-fill affordable housing

(1) This section applies to development permitted under State Environmental Planning Policy (Housing) 2021, Chapter 2, Part 2, Division 1, other than development carried out by or on behalf of the Aboriginal Housing Office or the Land and Housing Corporation.

(2) It is a condition of the development consent that before the issue of an occupation certificate for the development—

(a) a restriction must be registered, in accordance with the Conveyancing Act 1919, section 88E, against the title of the property relating to the development, which will ensure the requirements of subsection (3)(a) and (b) are met, and

(b) evidence of an agreement with a registered community housing provider for the management of the affordable housing component must be given to the Registrar of Community Housing, including the name of the registered community housing provider, and

(c) evidence that the requirements of paragraphs (a) and (b) have been met must be given to the consent authority.

(3) It is a condition of the development consent that during the relevant period—

(a) the affordable housing component must be used for affordable housing, and

(b) the affordable housing component must be managed by a registered community housing provider, and

(c) notice of a change in the registered community housing provider who manages the affordable housing component must be given to the Registrar of Community Housing and the consent authority no later than 3 months after the change, and

(d) the registered community housing provider who manages the affordable housing component must apply the Affordable Housing Guidelines.

(4) In this section—

affordable housing component has the same meaning as in State Environmental Planning Policy (Housing) 2021, section 21.

relevant period means a period of 15 years commencing on the day on which an occupation certificate is issued for all parts of the building or buildings to which the development consent relates.

s 82: Am 2022 (40), Sch 1[20]; 2023 (662), Sch 1[9].

83 Boarding houses

83 Boarding houses

(1) This section applies to development permitted under State Environmental Planning Policy (Housing) 2021, Chapter 2, Part 2, Division 2.

(2) It is a condition of the development consent that before the issue of an occupation certificate for the development—

(a) a restriction must be registered, in accordance with the Conveyancing Act 1919, section 88E, against the title of the property relating to the development, which will ensure the requirements of subsection (3)(a) and (b) are met, and

(b) evidence of an agreement with a registered community housing provider for the management of the boarding house must be given to the Registrar of Community Housing, including the name of the registered community housing provider, and

(c) evidence that the requirements of paragraphs (a) and (b) have been met must be given to the consent authority.

(3) It is a condition of the development consent that from the day on which an occupation certificate is issued for the development—

(a) the boarding house must be used for affordable housing, and

(b) the boarding house must be managed by a registered community housing provider in accordance with a plan of management, and

(c) notice of a change in the registered community housing provider who manages the boarding house must be given to the Registrar of Community Housing and the consent authority no later than 3 months after the change, and

(d) notice of a change to the plan of management must be given to the consent authority no later than 3 months after the change, and

(e) the registered community housing provider who manages the boarding house must apply the Affordable Housing Guidelines.

84 Residential flat buildings—social housing providers, public authorities and joint ventures

84 Residential flat buildings—social housing providers, public authorities and joint ventures

(1) This section applies to development permitted under State Environmental Planning Policy (Housing) 2021, Chapter 2, Part 2, Division 5, other than development carried out by or on behalf of the Aboriginal Housing Office or the Land and Housing Corporation.

(2) It is a condition of the development consent that before the issue of an occupation certificate for the development—

(a) a restriction must be registered, in accordance with the Conveyancing Act 1919, section 88E, against the title of the property relating to the development, which will ensure the requirements in subsection (3)(a) and (b) are met, and

(b) evidence of an agreement with a registered community housing provider for the management of the residential flat building must be given to the Registrar of Community Housing, including the name of the registered community housing provider, and

(c) evidence that the requirements in paragraph (a) and (b) have been met must be given to the consent authority.

(3) It is a condition of the development consent that during the relevant period—

(a) 50% of the dwellings to which the development consent relates must be used for affordable housing (the affordable housing dwellings), and

(b) the affordable housing dwellings must be managed by a registered community housing provider, and

(c) notice of a change in the registered community housing provider who manages the affordable housing dwellings must be given to the Registrar of Community Housing and the consent authority no later than 3 months after the change, and

(d) the registered community housing provider who manages the affordable housing dwellings must apply the Affordable Housing Guidelines.

(4) In this section—

relevant period means a period of 15 years commencing on the day on which an occupation certificate is issued for all parts of the building or buildings to which the development consent relates.

s 84: Am 2022 (448), sec 3(4); 2023 (662), Sch 1[10].

85 Co-living housing

85 Co-living housing

(1) This section applies to development permitted under State Environmental Planning Policy (Housing) 2021, Chapter 3, Part 3.

(2) It is a condition of the development consent that from the day on which an occupation certificate is issued for the development—

(a) the co-living housing must be managed in accordance with a plan of management by a managing agent who is contactable 24 hours a day, and

(b) notice of a change to the plan of management must be given to the consent authority no later than 3 months after the change, and

(c) private rooms and communal living areas in the co-living housing must contain appropriate furniture and fittings, maintained in a reasonable state of repair, for the use of residents.

86 Seniors housing

86 Seniors housing

(1) This section applies to development permitted under State Environmental Planning Policy (Housing) 2021, Chapter 3, Part 5.

(2) It is a condition of the development consent that, before the issue of the occupation certificate for the development, a restriction must be registered, in accordance with the Conveyancing Act 1919, section 88E, against the title of the property relating to the development, which will ensure that the requirement in subsection (3) is met.

(3) It is a condition of the development consent that, from the day on which an occupation certificate is issued for the development, only the following persons may occupy the accommodation to which the development consent relates—

(a) seniors or people who have a disability,

(b) people who live in the same household with seniors or people who have a disability,

(c) staff employed to assist in the administration and provision of services to the accommodation.

86A Residential flat buildings and shop top housing in Transport Oriented Development Areas

86A Residential flat buildings and shop top housing in Transport Oriented Development Areas

(1) This section applies to development permitted under State Environmental Planning Policy (Housing) 2021, Chapter 5 to which that policy, section 156 applies.

(2) It is a condition of the development consent that before the issue of an occupation certificate for the development—

(a) a restriction must be registered, in accordance with the Conveyancing Act 1919, section 88E, against the title of the property relating to the development, which will ensure the requirements of subsection (3)(a) and (b) are met, and

(b) evidence of an agreement with a registered community housing provider for the management of the affordable housing must be given to the Registrar of Community Housing, including the name of the registered community housing provider, and

(c) evidence that the requirements of paragraphs (a) and (b) have been met must be given to the consent authority.

(3) It is a condition of the development consent that—

(a) the gross floor area required to be used for affordable housing under State Environmental Planning Policy (Housing) 2021, section 156 must be used for affordable housing in perpetuity, and

(b) the affordable housing must be managed by a registered community housing provider in perpetuity, and

(c) notice of a change in the registered community housing provider who manages the affordable housing must be given to the Registrar of Community Housing and the consent authority no later than 3 months after the change, and

(d) the registered community housing provider who manages the affordable housing must apply the Affordable Housing Guidelines.

s 86A: Ins 2024 (134), Sch 1.

87 Notice of determination of development application

87 Notice of determination of development application

(1) Within 14 days after determining a development application, the consent authority must give written notice of the determination to the following—

(a) the applicant,

(b) each person referred to in the Act, section 4.18(1)(b),

(c) each person who made a submission about the development application under the Act, whether or not the development was designated development,

(d) for development that required concurrence under the Biodiversity Conservation Act 2016, Part 7 or under the Fisheries Management Act 1994, Part 7A—the person whose concurrence was required,

(e) for a development on land owned by a Local Aboriginal Land Council—the New South Wales Aboriginal Land Council,

(f) for integrated development—the relevant approval body, as required under the Act, section 4.47(6).

(2) Within 7 days after determining a development application to which State Environmental Planning Policy (Transport and Infrastructure) 2021, Chapter 5, section 5.17 applies, the consent authority must give written notice of the determination to the chief executive of the applicable Port Operator, within the meaning of that Chapter.

(3) Notice under subsection (1)(a) must be given through the NSW planning portal.

(4) Notice under subsection (1)(d) or (f) may be given through the NSW planning portal.

(4A) Notice must be given in the approved form if the consent authority is—

(a) a council, or

(b) a council exercising consent authority functions of a Sydney district or regional planning panel on behalf of the panel under the Act, section 4.7, or

(c) a local planning panel or an officer or employee exercising functions on behalf of a council under the Act, section 4.8.

(4B) Subsection (4A) does not apply to a notice for—

(a) State significant development, or

(b) Crown development.

(5) Failure to give the notice within the period required under this section does not affect the validity of the notice or the development consent to which it relates.

s 87: Am 2022 (40), Sch 1[21] [22]; 2022 (530), Sch 1[1].

88 Content of notice of determination

88 Content of notice of determination

(1) The notice of the determination of a development application given under section 87(1)(a), (d), (e) or (f) or (2) must contain the following information—

(a) whether the application is granted or refused,

(b) if the application is refused—the consent authority’s reasons for the refusal,

(c) if the application is granted with conditions, including conditions under the Act, section 4.17(11)—

(i) the terms of the conditions, and

(ii) for conditions other than the conditions prescribed under the Act, section 4.17(11)—the consent authority’s reasons for imposing the conditions,

(d) the day on which the determination was made,

(e) if development consent is granted for a concept development application—whether a subsequent development application is required,

(f) if development consent is granted—

(i) the day from which the development consent operates, and

(ii) the day on which the development consent lapses, and

(iii) a copy of any relevant plans or documents endorsed by the consent authority,

(g) if the development involves a building but does not require a construction certificate for the development to be carried out—the class of the building under the Building Code of Australia,

(h) whether the Independent Planning Commission has conducted a public hearing about the application,

(i) which approval bodies have given general terms of approval in relation to the development, as referred to in the Act, section 4.50,

(j) whether the applicant has the right to request a review of the determination under the Act, section 8.3,

(k) whether the applicant has a right of appeal against the determination under the Act, Part 8,

(l) whether an objector has a right of appeal against the determination under the Act.

(2) The notice must clearly refer to the registered number of the development application.

(3) If a development consent is granted subject to a condition that the development consent is not to operate until the applicant satisfies the consent authority, or a person specified by the consent authority, about a matter specified in the condition—

(a) the day from which the development consent operates must not be endorsed on the notice of determination, and

(b) if the applicant satisfies the consent authority, or person, about the matter, the consent authority must notify the applicant of the day from which the development consent operates.

s 88: Am 2022 (530), Sch 1[2].

89 Additional information relating to local infrastructure contributions

89 Additional information relating to local infrastructure contributions

(1) This section applies to the notice of the determination of a development application given to the applicant under section 87(1)(a), if the development consent is granted subject to—

(a) a condition under the Act, section 7.11 requiring the dedication of land or the payment of a monetary contribution, or both, or

(b) a condition under the Act, section 7.12 requiring the payment of a levy.

(2) The notice must also specify—

(a) if the condition was imposed under a contributions plan—

(i) the name of the contributions plan under which the condition is imposed, and

(ii) that the contributions plan is available on the council’s website, and

(b) for a condition under the Act, section 7.11—the specific public amenity or public service in relation to which the condition is imposed.

90 Content of notice of determination for persons who made submissions

90 Content of notice of determination for persons who made submissions

(1) This section applies to notice of the determination of a development application given to a person under section 87(1)(b) or (c).

(2) The notice must contain the following information—

(a) whether the application has been granted or refused,

(b) if development consent is granted—

(i) the day from which the development consent operates, and

(ii) the day on which the development consent lapses,

(c) whether the Independent Planning Commission has conducted a public hearing about the application,

(d) which approval bodies have given general terms of approval in relation to the development, as referred to in the Act, section 4.50,

(e) whether the applicant has the right to request a review of the determination under the Act, section 8.3,

(f) whether the applicant has a right of appeal against the determination under the Act, Part 8,

(g) whether an objector has a right of appeal against the determination under the Act,

(h) how the person may access more information about the development application.

(3) The notice must clearly refer to the registered number of the development application.

(4) Failure to give the notice within 14 days does not affect the validity of the notice or a development consent to which it relates.

90A Notice to Planning Secretary about development involving contravention of development standards—the Act, ss 2.20(3)(c) and 10.13(1)(b)

90A Notice to Planning Secretary about development involving contravention of development standards—the Act, ss 2.20(3)(c) and 10.13(1)(b)

(1) This section applies to a development application that—

(a) proposes, in accordance with a relevant EPI provision, development that contravenes a development standard imposed by any environmental planning instrument, and

(b) is determined by a council, local planning panel or Sydney district or regional planning panel.

(2) As soon as practicable after the development application is determined, the council of the area in which the development is proposed to be carried out must notify the Planning Secretary of the council’s or panel’s reasons for approving or refusing the contravention of the development standard.

(3) The notice must be given to the Planning Secretary through the NSW planning portal.

(4) To avoid doubt, this section applies whether or not development consent is granted.

(5) In this section—

relevant EPI provision has the same meaning as in section 35B.

s 90A: Ins 2023 (513), Sch 1[2].

91 Time for determining development applications

91 Time for determining development applications

(1) A consent authority is taken to have refused development consent if it has not determined the development application within the assessment period calculated in accordance with this Division.

(2) The assessment period is 60 days for a development application—

(a) for designated development, or

(b) for integrated development, other than integrated development that is Class 1 aquaculture development, or

(c) for development requiring concurrence, or

(d) that is accompanied by a biodiversity development assessment report under the Biodiversity Conservation Act 2016 that proposes to reduce the number of biodiversity credits required to be retired.

(3) The assessment period is 90 days for a development application for State significant development.

(4) The assessment period is 40 days for all other development applications, other than a Crown development application referred to in section 95.

92 Commencement of assessment period

92 Commencement of assessment period

(1) The assessment period for a development application commences on the day on which the development application is lodged.

(2) If a public hearing is conducted by the Independent Planning Commission into a development or part of a development, the assessment period for the development application commences on the day on which the Independent Planning Commission’s final report is published on the NSW planning portal, as required under the Act, Schedule 2, clause 6.

93 Additional days for certain assessment periods

93 Additional days for certain assessment periods

(1) The assessment period for a development application for the following development is increased by the number of days by which the public exhibition period for the development application exceeds the minimum period required under the Act—

(a) designated development,

(b) nominated integrated development,

(c) threatened species development,

(d) State significant development.

(2) If the public exhibition period for a development application for development specified in subsection (1) exceeds the minimum period required under the Act, the consent authority must notify the applicant of the dates of the public exhibition period and the effect of subsection (1).