Div 6Other matters

Division 6—Other matters 60—Consideration of other development authorisations A relevant authority must, in deciding whether to grant a development authorisation, take into account any prior development authorisation that relates to the same proposed development under the Act, and any conditions that apply in relation to that prior development authorisation. 61—Certificate of independent technical expert in certain cases (1) This regulation applies to the assessment of a proposed development against the Building Rules in respect of— (a) materials and forms of construction to which Part B1 or Part H1 of the Building Code applies; or (b) the matters referred to in Section E of the Building Code; or (c) the matters referred to in Section J or Part H6 of the Building Code. (2) For the purposes of section 118(8)(a) of the Act, a relevant authority must, in a circumstance where this regulation applies, accept that building work complies with the Building Rules to the extent that such compliance is certified by the provision of technical details, particulars, plans, drawings or specifications prepared and certified by an independent technical expert who— (a) certifies that the materials, forms of construction and systems to which the details, particulars, plans, drawings or specifications relate will, if installed or carried out in accordance with the details, particulars, plans, drawings or specifications, comply with the requirements of the Building Code; and (b) sets out in detail the basis on which the certificate is given and the extent to which the person giving the certificate has relied on relevant tests, specifications, rules, standards, codes of practice or other publications. (3) For the purposes of section 235(1) of the Act, a relevant authority or authorised officer may rely on a certificate of an independent technical expert in a circumstance to which this regulation applies. independent technical expert means a person who, in relation to building work— (a) is not the building owner or an employee of the building owner; and (b) has not— (i) been involved in any aspect of the relevant development (other than through the provision of preliminary advice of a routine or general nature); or (ii) had a direct or indirect pecuniary interest in any aspect of the relevant development or any body associated with any aspect of the relevant development; and (c) has engineering or other qualifications that the relevant authority is satisfied, on the basis of advice received from the accreditation authority under the Planning, Development and Infrastructure (Accredited Professionals) Regulations 2019, a relevant professional association, or another relevant registration or accreditation authority, qualify the person to act as a technical expert under this regulation. 62—Requirement to up-grade building in certain cases (1) For the purposes of section 134(1)(a)(i) of the Act, 1 January 2002 is prescribed. (2) For the purposes of section 134(4)(a) of the Act, an alteration that involves assessment by the relevant authority of the building work against the access provisions of the Building Code or a Ministerial building standard is an alteration of a prescribed class. (3) If— (a) an application is made for a building consent for building work in the alteration of a Class 1, 2 or 3 building under the Building Code; and (b) the building is in a bushfire prone area; and (c) the total floor area of the building would, after the completion of the proposed building work, have increased by at least 50%, when compared to the total floor area of the building as it existed 3 years before the date of the application (or, in the case of a building constructed since that time, as it existed at the date of completion of original construction), then the relevant authority may require, as a condition of consent, that the entire building be brought into conformity with the relevant requirements of the Building Code for bushfire protection. access provisions of the Building Code or a Ministerial building standard are the requirements within the Building Code or Ministerial building standard relating to access to buildings, or facilities and services within buildings, for people with a disability; bushfire prone area means a bushfire prone area under regulation 98. 62A—Urgent building work—temporary accommodation For the purposes of section 135(1)(b) of the Act, to provide temporary accommodation of a kind referred to in Schedule 6A clause 2 are circumstances of a prescribed kind. 63—Urgent work (1) For the purposes of section 135(2)(a) or 136(2)(a) of the Act, the relevant notification must be given— (a) by telephone, using the main telephone number at the principal office of the relevant authority, or a number determined by the relevant authority for the purposes of this paragraph; or (b) by email, using the main email address of the relevant authority, or an email address determined by the relevant authority for the purposes of this paragraph. (2) For the purposes of section 135(2)(c) of the Act, the period of 28 days from the commencement of the relevant work, or such longer period as the relevant authority may allow, is prescribed. (3) For the purposes of section 136(2)(c) of the Act, the period of 28 days from the performance of the relevant tree-damaging activity, or such longer period as the relevant authority may allow, is prescribed. 64—Building work affecting other land (1) It must be assumed in designing, and assessing the design of, a building that it is possible that an excavation which intersects (but does not extend beyond) a notional plane extending downwards from the boundary at the site at a slope of 1 vertical to 2 horizontal from a point 600 mm below natural ground level at the boundary could be undertaken on an adjoining site. (2) For the purposes of section 139 of the Act, work of the following nature is prescribed as building work which is to be treated for the purposes of that section as building work that affects the stability of other land or premises, namely: (a) an excavation which intersects a notional plane extending downwards at a slope of 1 vertical to 2 horizontal from a point 600 mm below natural ground level at a boundary with an adjoining site (as depicted by the example shown as figure 1 in Schedule 10); (b) an excavation which intersects any notional plane extending downwards at a slope of 1 vertical to 2 horizontal from a point at natural ground level at any boundary between 2 sites (not being a boundary with the site of the excavation), where the boundary is within a distance equal to twice the depth of the excavation (as depicted by the example shown as figure 2 in Schedule 10); (c) any fill which is within 600 mm of an adjoining site, other than where the fill is not greater than 200 mm in depth (or height) and is for landscaping, gardening or other similar purposes. (2a) For the purposes of section 139(2)(a) of the Act— (a) the form set out in Schedule 10A is prescribed; and (b) the person undertaking the development must serve a completed notice on the owner of the affected site at least 20 business days before the building work is commenced. (2b) For the purposes of section 139(2)(c) of the Act, before seeking access under section 139(2)(b) of the Act, the person undertaking the development (or a person authorised by that person) must give at least 1 business day's notice of the proposed work and the proposed time of accessing the affected site. (3) For the purposes of section 139(2)(b) of the Act, the owner of the affected land or premises may require the building owner to shore up any excavation or to underpin, stabilise or otherwise strengthen the foundations of any building to the extent specified by a professional engineer engaged by the owner of the affected land or premises. (4) The building owner must pay the reasonable costs of obtaining a report and plans and specifications from a professional engineer for the purposes of subregulation (3). (5) In subregulations (3) and (4)— professional engineer means a person who is— (a) a corporate member of Engineers Australia who has appropriate experience and competence in the field of civil or geotechnical engineering; or (b) a person who is registered on the National Professional Engineers Register administered by Engineers Australia and who has appropriate experience and competence in the field of civil or geotechnical engineering. 64A—Access to neighbouring land (1) For the purposes of section 140(3) of the Act, the form set out in Schedule 10B is prescribed. (2) For the purposes of section 140(4)(a) of the Act, the prescribed period is 10 business days. 65—Variation of authorisation (section 128) (1) For the purposes of section 128(2)(b) of the Act, if a person requests the variation of a development authorisation previously given under the Act (including by seeking the variation of a condition imposed with respect to the development authorisation) and the relevant authority is satisfied that the variation is minor in nature— (a) the relevant authority may approve the variation; and (b) the request is not to be treated as a new application for development authorisation; and (c) unless the variation is such that the result is an inconsistency with another consent, no further step need be taken in relation to a development approval already given (and no new approval needs to be given) but the relevant authority— (i) must endorse the notice that was given for the original development authorisation, including by noting the date of the minor variation and the nature of the variation; and (ii) must— (A) make any consequential changes to any plans, drawings, specifications or other documents or information that were endorsed at the time that the original development authorisation was given, note the date of the minor variation, and make a further endorsement; or (B) in the case of any new plans, drawings, specifications or other documents or information, note the minor variation and make an endorsement. (1a) For the purposes of subregulation (1), if the variation— (a) relates to planning consent previously given by an accredited professional in respect of development within the area of a council; and (b) is requested after final development approval has been granted, the relevant authority will, insofar as the variation relates to planning consent, be the assessment manager appointed for the assessment panel of the council. (2) Nothing in subregulation (1) prevents a person seeking more than 1 variation of a development authorisation of a kind referred to in that subregulation (whether simultaneously or at different times). (3) Subregulation (1) does not apply to a development authorisation relating to a division of land where certificates of title have been issued by the Registrar‑General in respect of the land divided in accordance with the development authorisation. (4) Except as otherwise provided, for the purposes of section 128(2)(b) of the Act, if a person requests the variation of a condition of a development authorisation previously given under the Act (a fresh application), the relevant authority that granted the development authorisation previously given will be the relevant authority for the purposes of assessing the fresh application. (5) If a fresh application relates to a development authorisation granted by the Commission in accordance with section 94(1) of the Act relating to a building on which building work was carried out and following which a certificate of occupancy was issued for the building, the relevant authority for the fresh application will not be the Commission but instead will be— (a) if the fresh application requests the variation of a condition of the development authorisation relating to planning consent only—the assessment manager appointed for the assessment panel of the council for the area in which the development is located; or (b) in any other case—the council for the area in which the development is located. (6) If an accredited professional who is the relevant authority for the purposes of assessing a fresh application by virtue of the operation of subregulation (4) is unable to act as the relevant authority in respect of the fresh application, the relevant authority for the fresh application will be— (a) if the fresh application requests the variation of a condition of the development authorisation relating to planning consent only—the assessment manager appointed for the assessment panel of the council for the area in which the development is located; or (b) in any other case—the council for the area in which the development is located. 66—Scheme descriptions—community titles (1) If an application under Part 7 of the Act relates to the division of land by a plan of community division and the relevant authority has endorsed a scheme description in accordance with the Community Titles Act 1996, a notice under regulation 57(1) must be accompanied by a copy of the endorsed scheme description. (2) An endorsement of a scheme description by a relevant authority under section 3 of the Community Titles Act 1996 should be in the form set out in Schedule 11 Form 1. 67—Lapse of consents or approvals (section 126(2)) (1) Subject to this or any other regulation (or any extension granted under section 126(3) of the Act), any consent or approval under Part 7 of the Act (whether subject to conditions or not) will lapse at the expiration of— (a) subject to the operation of paragraph (b)— (i) subject to subparagraph (ii), if development approval for the development to which the consent or approval relates is subsequently granted—2 years from the operative date of the development approval; or (ii) if development approval for the development to which the consent or approval relates is subsequently granted and an extension is granted under section 126(3) of the Act in respect of the development approval—the extended period in respect of that approval; or (iii) in any other case—2 years from the operative date of the consent or approval; (b) if— (i) the relevant development has been lawfully commenced by substantial work on the site of the development within 2 years from the operative date of the development approval—3 years from the operative date of the development approval, unless the development has been substantially or fully completed within those 3 years (in which case the approval will not lapse); or (ii) the relevant development involves the division of land and an application for a certificate under section 138 of the Act has been lodged with the Commission, accompanied by the prescribed fee, within 2 years from the operative date of the development approval—3 years from the operative date of the development approval. operative date of a consent or approval (including a development approval) means— (a) the date on which the consent or approval is given; or (b) if the decision to grant the consent or approval has been the subject of an appeal or review under the Act, the date on which any appeal or review is dismissed, struck out or withdrawn, or all questions relating to any appeal or review have been finally determined (other than as to costs), whichever is the later.