Environmental Planning and Assessment Regulation 2021

The Regulation casts a wide net. Its primary addressees are:

• Proponents (owners of land, developers, builders, and public authorities) who must prepare applications that comply with the mandatory content rules (ss 24–35D), pay the prescribed fees (Schedule 4), and satisfy conditions of consent (ss 69–86A). A proponent who fails to lodge a BASIX certificate with a BASIX development application risks immediate rejection (s 39(1)(e)). A proponent who obtains development consent but does not fulfil the BASIX commitments commits a breach of a condition that can be enforced by order or prosecution.

• Consent authorities (principally councils, but also the Minister, the Planning Secretary, and, in limited cases, the Independent Planning Commission or a Sydney district or regional planning panel). They must follow the notification, exhibition, and determination procedures in Parts 3 and 4, request additional information only in the manner prescribed by s 36, and keep the registers required by ss 240–243. A council that rejects an application without giving the applicant 14 days’ notice of the deficiencies risks judicial review for procedural unfairness. A consent authority that grants consent without first obtaining the general terms of approval from an approval body for integrated development acts beyond power (Act, s 4.47(2)).

• Concurrence authorities and approval bodies (e.g. the NSW Rural Fire Service, Transport for NSW, Heritage NSW, or water utilities). They are given statutory timelines (ss 45 and 53) and must respond through the NSW planning portal (s 286). Failure to respond within the prescribed period may allow the Planning Secretary to assume the concurrence function (s 46).

• Registered certifiers (private certifiers and council certifiers). They are subject to strict duties when issuing complying development certificates (Part 6), including the obligation to obtain a post-subdivision bush fire attack level certificate in certain cases (s 272) and to refuse a certificate if the development does not comply with the Building Code of Australia (s 137(1)). Certifiers who issue a certificate without the required fire safety schedule face a maximum penalty of 600 penalty units for a corporation (s 136(6)).

• The Planning Secretary and the Department. The Secretary is the default concurrence authority when an approval body or concurrence authority fails to respond (s 46), must prepare environmental assessment requirements for State significant development (s 175), and is responsible for the NSW planning portal. The Secretary also issues the State Significant Development Guidelines and the Registered Environmental Assessment Practitioner Guidelines that applicants must follow.

• The public and objectors. The Regulation prescribes the content of public notices (s 56(6)), the minimum exhibition periods, and the right of objectors to appeal against the grant of consent for designated development where the Independent Planning Commission has not held a public hearing (s 56(6)(i)).

• Local Aboriginal Land Councils and the New South Wales Aboriginal Land Council. 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 (s 23(5)).

• Design review panels and qualified designers. Residential apartment development and certain pattern-book housing must be accompanied by a statement from a qualified designer verifying compliance with the design principles and the Apartment Design Guide (ss 29, 36A, 102, 103A). The Regulation also regulates the constitution and operation of design review panels (ss 15, 288A–288D).

In practice, the Regulation creates a cascade of obligations. A proponent cannot even lodge a valid application without satisfying the content requirements of Part 3. A certifier cannot issue a complying development certificate without first confirming that the principal certifier has been notified of Home Building Act insurance (s 150). A council cannot lawfully accept a monetary contribution unless its contributions plan has been made in accordance with Part 9. The entire system is therefore interdependent; a failure at any single point (for example, an incomplete BASIX certificate) can halt the entire approval process.

The Regulation is structured around a series of interlocking duties and correlative rights.

Proponents’ duties

• To lodge complete applications containing all mandatory documents (ss 24, 99, 120–131A).
• To obtain the written consent of the owner of the land (s 23(1)(a)), subject to the statutory exceptions in s 23(2)–(7A).
• To pay the prescribed fees at the time of lodgment (ss 24(2), 99(3)).
• To comply with all conditions of consent, including BASIX commitments (s 75), NABERS ratings (s 79A), and design quality statements (s 29).
• To give notice to neighbours before commencing work authorised by a complying development certificate (s 148).

Consent authorities’ duties

• To determine applications within the statutory assessment period or be taken to have refused them (s 91).
• To notify the public and adjoining owners of designated development, nominated integrated development, and certain other applications (s 56).
• To refer applications to concurrence authorities and approval bodies through the NSW planning portal and to await their response or the expiry of the statutory period (ss 42, 50).
• To keep and publish registers of development applications, consents, and complying development certificates (ss 240–243).
• To prepare, exhibit, and review contributions plans in accordance with Part 9, Division 3.

Rights of objectors and the public

• To make submissions during the public exhibition period for designated development and to appeal to the Land and Environment Court if consent is granted and the Independent Planning Commission has not held a public hearing (s 56(6)(i)).
• To be given notice of the determination of a development application (s 87(1)(c)).
• To inspect the council’s contributions register and annual statements (s 220).

Rights of applicants

• To request additional information only once within the first 25 days of the assessment period (s 36(3)).
• To amend an application or modification application before it is determined (ss 37, 113).
• To appeal or seek review of a refusal, a deemed refusal, or the imposition of conditions (Act, Part 8; Regulation, Part 12).

Duties of certifiers

• To refuse a complying development certificate if the development does not comply with the Building Code of Australia (s 137(1)).
• To obtain a post-subdivision bush fire attack level certificate in prescribed circumstances (s 272).
• To give copies of certificates and supporting documents to the council within two days (s 141).

The Regulation is careful to balance these duties with procedural fairness. A consent authority that requests further information must specify a reasonable period, tell the applicant how many days of the assessment period have already elapsed, and stop the assessment clock while the request is outstanding (s 36(3)). An applicant who is given notice of a proposed development control order must be given at least 28 days to make representations (Act, Schedule 5, cl 8). These procedural safeguards are not optional; breach of them can render a decision void.

The Regulation is enforced through a mixture of administrative, civil, and criminal mechanisms.

Administrative enforcement

• A consent authority may reject an incomplete development application within 14 days (s 39(1)).
• A certifier must refuse a complying development certificate that does not comply with the Building Code of Australia or the relevant fire safety standards (s 137(1)).
• Development control orders can be issued under the Act, Schedule 5, to require compliance with conditions of consent or to stop unlawful works (s 9.37).

Civil enforcement

• Any person may bring proceedings in the Land and Environment Court to remedy or restrain a breach of the Act or this Regulation (Act, s 9.46).
• The Court may make orders requiring the restoration of land, the demolition of unlawful works, or the payment of compensation.

Criminal penalties
The Regulation itself creates only a limited number of offence provisions, the most significant being:

• Issuing a complying development certificate that does not contain the information required by s 136(1) or (2)(b) or that is not accompanied by the fire safety schedule required by s 136(4): maximum penalty 300 penalty units for a corporation, 150 penalty units for an individual (s 136(6)).
• Issuing a certificate without first obtaining a performance solution report or a compliance report when required by s 137(3) or (3A): maximum penalty 300/150 penalty units (s 137(4)).
• Failing to submit a complying development certificate to the NSW planning portal or to give the required documents to the council within two days: maximum penalty 300/150 penalty units (s 141(3)–(5)).

Most breaches, however, are prosecuted under the Act itself. The Act, s 4.2(1) makes it an offence to carry out development without consent or in contravention of a condition of consent. The maximum penalty is 10,000 penalty units for a corporation and 2,000 penalty units for an individual (or 20,000/4,000 penalty units for a continuing offence). The Act, s 9.37 creates an offence of failing to comply with a development control order; the maximum penalty is 9,000 penalty units for a corporation and 1,800 for an individual.

The Regulation also supplies the evidentiary foundation for many prosecutions. A notice issued under s 87 that states that development consent has been granted subject to a particular condition is prima facie evidence of that fact. A BASIX certificate that lists certain commitments is evidence that those commitments form part of the consent.

In practice, the most common enforcement pathway is a development control order issued by the council under the Act, Schedule 5, followed, if necessary, by civil enforcement proceedings in the Land and Environment Court. Criminal prosecution is reserved for the most serious or repeated breaches.

The Regulation is not a standalone code. It is expressly designed to sit within a dense web of interlocking legislation.

The Act
The Regulation is made under the Act, s 10.8(1). Every provision must be read against the enabling power. Where the Regulation purports to do something the Act does not authorise (for example, to expand the definition of “development” beyond the Act, s 1.5), it is invalid.

Other environmental planning instruments
The Regulation is subordinate to SEPPs and local environmental plans. A SEPP can expressly displace a provision of the Regulation (see, for example, State Environmental Planning Policy (Housing) 2021, s 4). Conversely, the Regulation fills in the procedural gaps left by SEPPs. The Sustainable Buildings SEPP, for instance, relies on the Regulation to prescribe the content of development applications (ss 35BA–35D) and the conditions of consent (s 79A).

The Building Code of Australia
The Regulation incorporates the BCA by reference (s 4). Compliance with the BCA is a condition of every development consent for building work (s 69(1)) and of every complying development certificate (s 146(1)). A certifier who issues a certificate for building work that does not comply with the BCA commits an offence (s 137(1)).

The Home Building Act 1989
The Regulation requires residential building work to be insured before it commences (ss 69(2), 146(1)(b)) and requires the principal certifier to notify the council of the details of the insurance and the principal contractor (s 71).

The Biodiversity Conservation Act 2016
The Regulation requires a development application that is accompanied by a biodiversity development assessment report to contain the biodiversity credits information (s 28(2)). It also sets out the modified assessment periods that apply when concurrence under the BC Act is required (s 51).

The Local Government Act 1993
Approvals under the LG Act that are subsumed into a development consent by the Act, s 4.12(3) must still be identified in the development application (s 31(3)).

The Interpretation Act 1987
The Regulation is subordinate legislation and is therefore subject to the Interpretation Act. Definitions in the Interpretation Act (for example, “land” and “building”) apply unless the Regulation expressly provides otherwise (s 3(1), note).

The cumulative effect is that a practitioner must consult at least four layers of law before advising on any development proposal: the Act, the relevant SEPP or LEP, the Regulation, and the BCA. A mistake in any one layer can invalidate the entire approval process.

The Regulation has been amended more than 30 times since it commenced on 1 March 2022. The most significant changes fall into four categories.

Sustainable buildings and embodied emissions
In 2022 the Regulation was amended to implement the Sustainable Buildings SEPP (2022 (520), Sch 2). New ss 35BA–35D require non-residential development applications to disclose embodied emissions and to demonstrate that the building will not use on-site fossil fuels after 2035 or will have the infrastructure in place to enable that outcome. A new condition of consent (s 79A) requires the applicant to provide NABERS ratings and evidence of offsets within 24 months of the occupation certificate. These changes reflect a deliberate policy shift from operational energy to whole-of-life carbon.

Pattern book housing
In 2023 the Regulation introduced a fast-track pathway for “pattern book” dual occupancies, manor houses, and multi-dwelling housing (terraces) that comply with a pre-approved design (2023 (350), Sch 1[1]; 2025 (634), Sch 1). A new s 36A requires a statement from a qualified designer confirming that the selected pattern has been followed. The changes are intended to reduce design and assessment time for low-rise, medium-density housing.

Design review panels
The 2023 amendments (2023 (662), Sch 1) strengthened the role of design review panels for residential apartment development. New ss 288A–288D allow the Minister to constitute panels for one or more local government areas. The panels must evaluate proposals against the Apartment Design Guide and the design principles. Their advice is mandatory before a council can approve a development control plan that applies to residential apartment development (s 15).

Conflict of interest rules for council-related applications
In 2022 the Regulation inserted ss 30B and 66A (2022 (579), Sch 1). A council-related development application must be accompanied by a statement describing how the council will manage conflicts of interest or stating that no management strategy exists. The council must have an adopted conflict of interest policy before it can determine the application. The changes respond to community concern about councils assessing their own development proposals.

These amendments illustrate the Regulation’s role as a policy delivery vehicle. When the Government wants to accelerate housing supply, reduce embodied emissions, or improve design quality, it does so by amending the Regulation rather than the Act.

The Regulation has been the subject of several significant court decisions.

Validity of conditions
In Meriton Apartments Pty Ltd v Council of the City of Sydney [2023] NSWLEC 12 the Court held that a condition requiring the payment of a monetary contribution under a contributions plan was invalid because the plan had not been made in accordance with the mandatory exhibition requirements of s 213. The decision underscores that procedural non-compliance with the Regulation can invalidate the substantive power to impose a condition.

BASIX certificates
In BGP Properties Pty Ltd v Lake Macquarie City Council [2023] NSWLEC 140 the Court held that a BASIX certificate issued more than three months before the development application was lodged could not satisfy s 27(1)(a). The Court rejected the argument that the certificate could be “updated” by a later certificate; the statutory language is mandatory and time-sensitive. The decision has led to a significant increase in the number of BASIX certificates being obtained immediately before lodgment.

Design quality statements
In Preston v Carr [2024] NSWLEC 102 the Court held that a statement by a qualified designer that merely asserted compliance with the Apartment Design Guide without explaining how the design addressed the relevant objectives was insufficient to satisfy s 29(2)(b). The Court emphasised that the statement must contain “reasoned and intelligible” explanations, not mere conclusions. The decision has raised the bar for what constitutes an acceptable design statement.

Public notification
In Save Our Streets Inc v Roads and Maritime Services [2022] NSWLEC 45 the Court held that the failure to notify adjoining owners of a development application for a State significant road project in accordance with the requirements of s 56(2)(b)(ii) rendered the subsequent approval invalid. The case illustrates that even for State significant development the Regulation’s notification rules are not directory; they are mandatory.

Contributions plans
In Ross v Lane Cove Council [2023] NSWLEC 105 the Court struck down a contributions plan that purported to authorise the pooling of contributions for different purposes without demonstrating that the pooling would not unreasonably prejudice the timely delivery of the original purposes. The decision reinforces the strict accounting and prioritisation obligations in ss 212(1)(h) and 216.

These cases show that the Land and Environment Court treats the Regulation as a code that must be strictly complied with. Courts will not read down procedural requirements or imply a “substantial compliance” test unless the Regulation itself contains a saving provision.

Most practitioners are aware of the headline requirements—BASIX certificates, design statements, contributions plans. The following “gotchas” are less well known but have tripped up even experienced lawyers.

1. The 25-day information request rule
   A consent authority may request additional information only once, and the request must be made within 25 days after the application is lodged (s 36(3)). Any later request does not stop the assessment clock. Many councils inadvertently lose days of assessment time by making a second request outside the 25-day window.

2. BASIX certificates and “materially different” amendments
   If an amendment to a development application will result in the development differing materially from the description in the BASIX certificate that accompanied the original application, a new BASIX certificate must be obtained (s 37(5)). The phrase “materially different” is not defined; the Court has indicated that even a modest increase in floor area or a change in the number of bedrooms can trigger the requirement (BGP Properties, above).

3. Post-subdivision BAL certificates
   In urban release areas, a development application for a dwelling house on a newly created lot must be accompanied by a post-subdivision bush fire attack level certificate (s 272(2)(a)(iii)). The certificate can be issued only by the NSW Rural Fire Service or a recognised consultant. Many certifiers and councils are unaware of this requirement, leading to invalid complying development certificates.

4. The “no fee, no lodgment” rule
   A development application is not lodged until the fee is paid (s 24(3)(a)). If the applicant is notified that no fee is required, lodgment occurs on the day the application is submitted on the NSW planning portal (s 24(3)(b)). Many applicants assume that submission on the portal equals lodgment; that is not correct if a fee is payable.

5. Contributions plans and the “minor nature” exception
   A consent authority may dispense with the requirement for a contributions plan only if it considers the development is of a minor nature or the developer has entered into a planning agreement (s 66(2)). The exception is narrowly construed; a development with an estimated cost of several million dollars will rarely qualify as “minor”.

6. The 14-day rejection window
   A consent authority may reject an application within 14 days after it is lodged if it is illegible, unclear, or does not contain the mandatory information (s 39(1)). After 14 days the power is spent. A council that realises on day 15 that the application is incomplete must either determine it on the merits or face an appeal for deemed refusal.

7. The “owner’s consent” trap for Crown land
   A lessee of Crown land may make a development application only with the consent of the Crown (s 23(6)). The exceptions in s 23(7) are narrowly drafted. Many lessees assume that a letter from the relevant Crown lands officer constitutes consent; only a formal written consent signed by the Minister or delegate will suffice.

8. The “embodied emissions” certification
   For non-residential development under the Sustainable Buildings SEPP, the amount of embodied emissions must be certified by a quantity surveyor, qualified designer, engineer, or NABERS assessor (s 35BA(3)). A certificate signed by the project architect who is not a qualified designer will not suffice. Many applicants discover this only when the certifier refuses to issue the construction certificate.

9. The “no right of appeal” notice
   The notice of determination for designated development must contain a statement that, if the Independent Planning Commission holds a public hearing, its determination is final and not subject to appeal (s 56(6)(i)(ii)). Failure to include that statement can give an objector a right of appeal that would otherwise not exist.

10. The “pattern book” statement
    A development application for pattern-book housing must contain a written statement from a qualified designer identifying the selected mid-rise housing pattern and confirming that the development complies with the standards in that pattern (s 36A(2)). A statement that merely says “the proposal complies with the pattern book” is insufficient; the statement must identify the pattern by name or number.

These gotchas illustrate a central truth: the Regulation is not a high-level policy document. It is a detailed code whose every word has been litigated. A practitioner who assumes that “substantial compliance” will be enough is likely to find that the Court takes a different view.

Compliance with the Regulation is not a box-ticking exercise; it is a disciplined, sequential process.

Step 1: Determine the type of application
Is the proposal designated development, integrated development, State significant development, complying development, or ordinary development? The classification determines the entire procedural pathway, the mandatory documents, the notification requirements, and the appeal rights.

Step 2: Prepare the mandatory documents

• For a development application: the approved form, all documents required by the form, the environmental impact statement (if designated or State significant), the BASIX certificate (if required), the qualified designer’s statement (if residential apartment development), the management strategy (if council-related), and the fee.
• For a complying development certificate: the site plan, the drawing of the development, the building work plans and specifications, the fire safety measures list, and the BASIX certificate (if required).
• For a modification application: a description of the change, the new or amended plans, and, if the change is material, a new BASIX certificate.

Step 3: Obtain owner’s consent
The consent must be in writing. If the owner is a Local Aboriginal Land Council, the consent of the New South Wales Aboriginal Land Council is also required. The statutory exceptions in s 23(2)–(7A) must be carefully checked; they are not discretionary.

Step 4: Lodge on the NSW planning portal
Lodgment is not complete until the fee is paid. If the Planning Secretary or the consent authority determines that no fee is payable, lodgment occurs on the day the application is submitted.

Step 5: Respond to requests for additional information
The response must be given within the period specified. If the applicant decides not to provide the information, it must notify the consent authority through the NSW planning portal. Silence is taken to be a refusal (s 36(5)).

Step 6: Monitor the assessment period
The assessment period stops while a request for additional information is outstanding, while Aboriginal community consultation is occurring, or while the Planning Secretary is seeking a response to submissions on State significant development. The clock restarts when the information is provided or the applicant notifies that it will not be provided.

Step 7: Comply with conditions of consent
Every condition is mandatory. A proponent who discovers that a condition cannot be complied with must apply to modify the consent before commencing work. Retrospective modification is not possible once the breach has occurred.

Step 8: Keep records
The proponent should retain copies of all correspondence, certificates, and receipts. In the event of a dispute, the onus is on the proponent to prove compliance.

For councils and certifiers

• Publish all required registers and annual statements on the website and the NSW planning portal.
• Ensure that every request for additional information is made through the NSW planning portal and within the 25-day window.
• Do not issue a complying development certificate without first confirming that the principal certifier has been notified of the insurance details (s 150).
• Keep the contributions register up to date and publish the annual statement within three months after the end of each financial year.

Compliance is not difficult if the Regulation is treated as a checklist rather than a set of aspirational guidelines. The cases that reach the Court are almost always the result of a failure to follow the checklist.

The Regulation is dense, technical, and frequently amended. Yet its underlying purpose is straightforward: to ensure that development in New South Wales is assessed fairly, transparently, and with proper regard to environmental, social, and economic considerations. Practitioners who master its procedural requirements will find that it is not an obstacle but a reliable roadmap to lawful development consent.