Environmental Planning and Assessment Act 1979 (NSW)

Environmental Planning and Assessment Act 1979 No 203 An Act to institute a system of environmental planning and assessment for the State of New South Wales. Part 1 Preliminary 1.1 Name of Act (cf previous s 1) This Act may be cited as the Environmental Planning and Assessment Act 1979. 1.2 Commencement (cf previous s 2) This Act commenced on 1 September 1980. Note. The Historical notes set out at the end of the Act on the NSW legislation website sets out the various Acts and instruments that have amended this Act and the dates on which each commenced. 1.3 Objects of Act (cf previous s 5) The objects of this Act are as follows— (a) to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State's natural and other resources, (b) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment, (c) to promote the orderly and economic use and development of land, (d) to promote the delivery and maintenance of affordable housing, (e) to protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats, (f) to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage), (g) to promote good design and amenity of the built environment, (h) to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants, (i) to promote the sharing of the responsibility for environmental planning and assessment between the different levels of government in the State, (j) to provide increased opportunity for community participation in environmental planning and assessment. 1.4 Definitions (cf previous s 4) (1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires— advertisement means a sign, notice, device or representation in the nature of an advertisement visible from any public place or public reserve or from any navigable water. advertising structure means a structure used or to be used principally for the display of an advertisement. affordable housing means housing for very low income households, low income households or moderate income households, being such households as are prescribed by the regulations or as are provided for in an environmental planning instrument. amend includes alter, vary or substitute (and amend provisions or a document includes amend a map or spatial dataset adopted by or under the provisions or document). area has the same meaning as it has in the Local Government Act 1993. authorised fire officer—see section 9.35(1)(d). brothel means a brothel within the meaning of the Restricted Premises Act 1943, other than premises used or likely to be used for the purposes of prostitution by no more than one prostitute. building includes part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure within the meaning of the Local Government Act 1993. Building Code of Australia means the document, published by or on behalf of the Australian Building Codes Board, that is prescribed for purposes of this definition by the regulations, together with— (a) the amendments made by the Board and prescribed by the regulations, and (b) the variations approved by the Board in relation to New South Wales and prescribed by the regulations, and (c) the variations prescribed by the regulations. building work—see Part 6. certifier—see Part 6. Note. Under Part 6, a certifier is a council or a person registered as a registered certifier under the Building and Development Certifiers Act 2018 acting in respect of matters to which the registration applies. change of building use means a change of use of a building from a use that the Building Code of Australia recognises as appropriate to one class of building to a use that the Building Code of Australia recognises as appropriate to a different class of building. city, in the Six Cities Region, means an area of land described as a city in Schedule 9. community participation plan means a community participation plan prepared and published under Division 2.6. complying development is development for which provision is made as referred to in section 4.2(5). complying development certificate means a complying development certificate referred to in section 4.27. consent authority—see Division 4.2. construction certificate, subdivision works certificate, occupation certificate, subdivision certificate, compliance certificate—see Part 6. control, in relation to development or any other act, matter or thing, means— (a) consent to, permit, regulate, restrict or prohibit that development or that other act, matter or thing, either unconditionally or subject to conditions, or (b) confer or impose on a consent authority functions with respect to consenting to, permitting, regulating, restricting or prohibiting that development or that other act, matter or thing, either unconditionally or subject to conditions. council has the same meaning as it has in the Local Government Act 1993. Court means the Land and Environment Court. Crown land has the same meaning as in the Crown Land Management Act 2016. demolition of a building or work includes enclosing a public place in connection with the demolition of a building or work. Department means the Department of Planning and Environment. designated development has the meaning given by section 4.10. designated Sydney districts means the following cities in the Six Cities Region, as described in Schedule 9— (a) the Eastern Harbour City, (b) the Central River City, (c) the Western Parkland City. development—see section 1.5. development application means an application for consent under Part 4 to carry out development but does not include an application for a complying development certificate. development area means land constituted as a development area in accordance with Division 7.3. development consent means consent under Part 4 to carry out development and includes, unless expressly excluded, a complying development certificate. development control order means an order under Division 9.3. development control plan (or DCP) means a development control plan made, or taken to have been made, under Division 3.6 and in force. development standards means provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of— (a) the area, shape or frontage of any land, the dimensions of any land, buildings or works, or the distance of any land, building or work from any specified point, (b) the proportion or percentage of the area of a site which a building or work may occupy, (c) the character, location, siting, bulk, scale, shape, size, height, density, design or external appearance of a building or work, (d) the cubic content or floor space of a building, (e) the intensity or density of the use of any land, building or work, (f) the provision of public access, open space, landscaped space, tree planting or other treatment for the conservation, protection or enhancement of the environment, (g) the provision of facilities for the standing, movement, parking, servicing, manoeuvring, loading or unloading of vehicles, (h) the volume, nature and type of traffic generated by the development, (i) road patterns, (j) drainage, (k) the carrying out of earthworks, (l) the effects of development on patterns of wind, sunlight, daylight or shadows, (m) the provision of services, facilities and amenities demanded by development, (n) the emission of pollution and means for its prevention or control or mitigation, and (o) such other matters as may be prescribed. ecologically sustainable development has the same meaning it has in section 6(2) of the Protection of the Environment Administration Act 1991. environment includes all aspects of the surroundings of humans, whether affecting any human as an individual or in his or her social groupings. environmental planning instrument means an environmental planning instrument (including a SEPP or LEP but not including a DCP) made, or taken to have been made, under Part 3 and in force. erection of a building includes— (a) the rebuilding of, the making of alterations to, or the enlargement or extension of, a building, or (b) the placing or relocating of a building on land, or (c) enclosing a public place in connection with the construction of a building, or (d) erecting an advertising structure over a public road, or (e) extending a balcony, awning, sunshade or similar structure or an essential service pipe beyond the alignment of a public road, but does not include any act, matter or thing excluded by the regulations (either generally for the purposes of this Act or only for the purposes of specified provisions of this Act). exempt development—see section 1.6. function includes a power, authority or duty, and exercise a function includes perform a duty. Independent Planning Commission means the Independent Planning Commission constituted under Part 2. integrated development has the meaning given by section 4.46. land includes— (a) the sea or an arm of the sea, (b) a bay, inlet, lagoon, lake or body of water, whether inland or not and whether tidal or non-tidal, and (c) a river, stream or watercourse, whether tidal or non-tidal, and (d) a building erected on the land. local environmental plan (or LEP)—see section 3.13(2). local planning panel means a local planning panel constituted under Part 2. Ministerial planning order means an order made by the Minister and published on the NSW planning portal. NSW planning portal means the website with the URL of www.planningportal.nsw.gov.au, or any other website, used by the Planning Secretary to provide public access to documents or other information in the NSW planning database. objector means a person who has made a submission under Schedule 1 by way of objection to a development application for consent to carry out designated development. occupier includes a tenant or other lawful occupant of premises, not being the owner. owner has the same meaning as in the Local Government Act 1993. owner-builder has the same meaning as in the Home Building Act 1989. person includes an unincorporated group of persons or a person authorised to represent that group. place of shared accommodation includes a boarding house, a common lodging house, a house let in lodgings and a backpackers hostel. Planning Ministerial Corporation means the corporation constituted under Part 2. Planning Secretary means the Secretary of the Department of Planning and Environment. premises means any of the following— (a) a building of any description or any part of it and the appurtenances to it, (b) manufactured home, moveable dwelling or associated structure within the meaning of the Local Government Act 1993, (b1) a vehicle of any description, (c) land, whether built on or not, (d) a tent, (e) a swimming pool, (f) a ship or vessel of any description (including a houseboat). principal contractor for building work means the person responsible for the overall co-ordination and control of the carrying out of the building work. Note. If any residential building work is involved, the principal contractor must be the holder of a contractor licence under the Home Building Act 1989. prohibited development means— (a) development the carrying out of which is prohibited on land by the provisions of an environmental planning instrument that apply to the land, or (b) development that cannot be carried out on land with or without development consent. provision for fire safety means provision for any or all of the following— (a) the safety of persons in the event of fire, (b) the prevention of fire, (c) the detection of fire, (d) the suppression of fire, (e) the prevention of the spread of fire. public authority means— (a) a public or local authority constituted by or under an Act, or (b) a Public Service agency, or (c) a statutory body representing the Crown, or (d) a Public Service senior executive within the meaning of the Government Sector Employment Act 2013, or (e) a statutory State owned corporation (and its subsidiaries) within the meaning of the State Owned Corporations Act 1989, or (f) a chief executive officer of a corporation or subsidiary referred to in paragraph (e), or (g) a person prescribed by the regulations for the purposes of this definition. public place has the same meaning as in the Local Government Act 1993. public reserve has the same meaning as in the Local Government Act 1993. public road has the same meaning as in the Roads Act 1993. registered certifier means a person registered under the Building and Development Certifiers Act 2018 acting in respect of matters to which the registration applies. Registration Secretary means the Secretary within the meaning of the Building and Development Certifiers Act 2018. regulation means a regulation made under this Act. residential building work has the same meaning as in the Home Building Act 1989. Six Cities Region means the region described in Schedule 9. State environmental planning policy (or SEPP)—see section 3.13(2). State significant development has the meaning given by Division 4.7. State significant infrastructure has the meaning given by Division 5.2. subdivision of land—see Part 6. subdivision work—see Part 6. Sydney district or regional planning panel means a Sydney district planning panel or a regional planning panel constituted under Part 2. temporary structure includes a booth, tent or other temporary enclosure (whether or not part of the booth, tent or enclosure is permanent), and also includes a mobile structure. Tier 1, Tier 2 or Tier 3 monetary penalty, in relation to an offence, indicates the maximum monetary penalty that a court may impose for the offence—see sections 9.52–9.54 for the relevant maximum amounts. use of land includes a change of building use. work includes any physical activity in relation to land that is specified by a regulation to be a work for the purposes of this Act, but does not include a reference to any activity that is specified by a regulation not to be a work for the purposes of this Act. The carrying out of a work includes— (a) the renewal of, the making of alterations to, or the enlargement or extension of, a work, or (b) enclosing a public place in connection with the carrying out of a work. Note. The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) (Repealed) (3) Where functions are conferred or imposed by or under this Act on a council— (a) except as provided in paragraph (b), those functions may be exercised in respect of an area by the council of that area, or (b) if the functions are conferred or imposed in respect of part of an area, those functions may be exercised in respect of that part by the council of that area. (3A) Where functions are conferred or imposed by or under this Act on a public authority, being a Public Service agency or some other unincorporated group of persons, those functions may be exercised by a person who is authorised to exercise those functions on behalf of the public authority. (4) (Repealed) (5) A reference in this Act to an authority or person preparing a document includes a reference to the authority or person causing the document to be prepared on the authority's or person's behalf. (6), (6A) (Repealed) (7) A reference in this Act to a direction is a reference to a direction in writing. (7A) (Repealed) (8) A power, express or implied, to make or give an order, direction, declaration, determination or other instrument under this Act or under an instrument made under this Act includes a power to revoke or amend the order, direction, declaration, determination or other instrument. (8A), (9) (Repealed) (10) A reference in this Act to any act, matter or thing as specified in an environmental planning instrument includes a reference to any act, matter or thing that is of a class or description as specified in such an instrument. (11) A reference in this Act to the granting of consent includes a reference to the granting of consent subject to conditions. (12) Without affecting the generality of section 8(b) of the Interpretation Act 1987, a reference in this Act to the owner or lessee of land includes a reference to joint or multiple owners or lessees of land. (13) Notes in this Act are explanatory notes and do not form part of this Act. (14) A reference in this Act to an original document, map or plan includes a reference to a document, map or plan created, or a copy of which is kept, in electronic form. (15) A reference in this Act to a map includes a reference to a spatial dataset. 1.5 Meaning of "development" (cf previous s 4) (1) For the purposes of this Act, development is any of the following— (a) the use of land, (b) the subdivision of land, (c) the erection of a building, (d) the carrying out of a work, (e) the demolition of a building or work, (f) any other act, matter or thing that may be controlled by an environmental planning instrument. (2) However, development does not include any act, matter or thing excluded by the regulations (either generally for the purposes of this Act or only for the purposes of specified provisions of this Act). (3) For the purposes of this Act, the carrying out of development is the doing of the acts, matters or things referred to in subsection (1). Note. There are the following categories of development under this Act— (a) exempt development (development that is exempt from the assessment and consent or approval requirements of this Act), (b) development requiring development consent under Part 4, including the following— (i) complying development (development that complies with pre-determined development standards and requires consent in the form of a complying development certificate by a consent authority or registered certifier), (ii) development that requires consent by a council or other public authority specified as the consent authority (including by a local planning panel or delegated council staff on behalf of a council), (iii) regionally significant development (development that requires consent by a Sydney district or regional planning panel), (iv) State significant development (development that requires consent by the Independent Planning Commission or the Minister), (v) designated development (development, other than State significant development, that requires an environmental impact statement for an application for consent), (vi) integrated development (development that also requires approvals under other legislation that are integrated under general terms of approval), (c) development that is an activity requiring environmental assessment under Division 5.1 before it is carried out by a public authority or before a public authority gives approval for the carrying out of the activity, (d) State significant infrastructure (including critical State significant infrastructure) requiring approval under Division 5.2 by the Minister. 1.6 Exempt development (cf previous s 4) (1) The carrying out of exempt development does not require— (a) development consent under Part 4, or (b) environmental impact assessment under Division 5.1, or (c) State significant infrastructure approval under Division 5.2, or (d) a certificate under Part 6 (Building and subdivision certification). (2) Exempt development is development that is declared to be exempt development by an environmental planning instrument because of its minor impact. 1.7 Application of Part 7 of Biodiversity Conservation Act 2016 and Part 7A of Fisheries Management Act 1994 (cf previous s 5AA) This Act has effect subject to the provisions of Part 7 of the Biodiversity Conservation Act 2016 and Part 7A of the Fisheries Management Act 1994 that relate to the operation of this Act in connection with the terrestrial and aquatic environment. Note. Those Acts contain additional requirements with respect to assessments, consents and approvals under this Act. 1.8 Amendment of area comprising Six Cities Region (1) The regulations may amend Schedule 9 as follows— (a) to add a city to the Six Cities Region, (b) to remove a city from the Six Cities Region, (c) to amalgamate 2 or more cities in the Six Cities Region into 1 or more new cities, (d) to add a local government area, or part of a local government area, to a city in the Six Cities Region, (e) to remove a local government area, or part of a local government area, from a city in the Six Cities Region. (2) The regulations may contain provisions of a savings or transitional nature consequent on the making of a regulation under subsection (1). Part 2 Planning administration Division 2.1 Minister and Planning Secretary 2.1 The Minister (cf previous s 7) (1) The Minister has portfolio responsibility for planning and for the administration of the provisions of this Act allocated to the Minister by an administrative arrangements order under the Constitution Act 1902. (2) The Minister has the functions conferred or imposed on the Minister under this Act. 2.2 The Planning Secretary (cf previous ss 13, 15, 17) (1) The Planning Secretary has departmental responsibility for planning and for the administration of the provisions of this Act allocated to the Minister by an administrative arrangements order under the Constitution Act 1902. (2) The Planning Secretary has the functions conferred or imposed on the Planning Secretary under this Act. (3) The Planning Secretary may provide advice, recommendations and reports to the Minister in connection with the administration of this Act (whether on the Planning Secretary's own initiative or as required by the Minister). (4) The Planning Secretary is, in the exercise of any function under this Act, subject to the control and direction of the Minister (except in relation to the contents of any advice, recommendation or report provided to the Minister by the Planning Secretary). 2.3 Panels established by Minister or Planning Secretary (cf previous s 22) (1) The Minister or the Planning Secretary may, by order published on the NSW legislation website, establish panels for the purposes of this Act. (2) The chairperson and other members of any such panel are to be appointed by the Minister or the Planning Secretary (as the case requires). (3) The functions of any such panel are to be as specified in the order by which it is established, and (without limitation) may include— (a) the investigation of any matter relevant to the administration of this Act, or (b) the provision of advice, recommendations or reports with respect to any such matter to the Minister, the Planning Secretary or other person or body engaged in the administration of this Act. This subsection does not limit any functions conferred on any such panel under this or any other Act. (4) Any such panel is not subject to the direction or control of the Minister or the Planning Secretary (except in relation to the procedure of the panel and any directions under section 9.1). (5) The order establishing any such panel is to specify the name of the panel. The word "panel" is not required to be included in the name of the panel. (6) Schedule 2 contains provisions with respect to the members and procedure of any such panel. (7) The regulations may make provision for or with respect to the functions, members and procedure of any such panel. (8) Any such panel is a NSW Government agency, unless the order by which it is established provides that it is not a NSW Government agency. Note. By virtue of section 13A of the Interpretation Act 1987, a NSW Government agency has the status, privileges and immunities of the Crown. 2.4 Delegation by Minister, Planning Ministerial Corporation or Planning Secretary (cf previous s 23) (1) The Minister, the Planning Ministerial Corporation or the Planning Secretary may delegate any of their functions under this Act to— (a) a person employed in the Department of Planning and Environment, or (b) (Repealed) (c) the Independent Planning Commission, or (d) a Sydney district planning panel, or (e) a regional planning panel, or (f) a public authority or member of staff of a public authority, or (g) a council or member of staff of a council, or (h) a person, or person of a class, authorised for the purposes of this section by the regulations. (2) A reference in this section to a function under this Act includes a reference to— (a) a function of the Minister under any other Act that is conferred or imposed on the Minister in his or her capacity as the Minister administering this Act or in connection with the administration of this Act, or (b) a function of the Planning Ministerial Corporation under any other Act, or (c) a function of the Planning Secretary under any other Act that is conferred or imposed on the Planning Secretary in connection with the administration of this Act. (3) This section does not authorise the delegation of— (a) the power of delegation conferred by this section, or (b) the function of the Minister under Division 5.2 of determining an application for approval to carry out critical State significant infrastructure, or (c) any function of the Minister of giving directions under section 9.1 or of appointing a planning administrator or exercising other functions under section 9.6. Division 2.2 Planning Ministerial Corporation 2.5 Constitution and functions of Corporation (cf previous s 8) (1) There is constituted by this Act a corporation with the corporate name of the Planning Ministerial Corporation. (2) The Planning Ministerial Corporation has such functions as are conferred or imposed on it under this or any other Act. (3) The Planning Ministerial Corporation is a NSW Government agency. 2.6 Management of Corporation (cf previous s 8) (1) The affairs of the Planning Ministerial Corporation are to be managed by the Planning Secretary in accordance with any directions of the Minister. (2) Any act, matter or thing done in the name of, or on behalf of, the Planning Ministerial Corporation by the Planning Secretary, or with the authority of the Planning Secretary, is taken to have been done by the Corporation. (3) The regulations may make provision with respect to the seal of the Planning Ministerial Corporation. (4) The annual report of the Planning Ministerial Corporation is to be published as part of the annual report of the Department of Planning and Environment. Note. Schedule 2 contains property provisions relating to the Planning Ministerial Corporation and Division 7.3 contains financial provisions relating to the Corporation. Division 2.3 Independent Planning Commission 2.7 Independent Planning Commission (cf previous s 23B) (1) There is constituted by this Act a corporation with the corporate name of the Independent Planning Commission of New South Wales. (2) The Commission is not subject to the direction or control of the Minister (except in relation to the procedure of the Commission and any directions authorised to be given to the Commission under section 9.1 or other provision of this Act). (3) The Commission is a NSW Government agency. 2.8 Members of Commission (cf previous Sch 3, cl 2) (1) The Independent Planning Commission is to consist of such members as are appointed by the Minister. (2) One member of the Commission is, in the instrument of appointment or a subsequent instrument, to be appointed as the chairperson of the Commission. (3) Each member is to have expertise in at least one area of planning, architecture, heritage, the environment, urban design, land economics, soil or agricultural science, hydro-geology, mining or petroleum development, traffic and transport, law, engineering, tourism or government and public administration. (4) In appointing a member of the Commission, the Minister is to have regard to the need to have a range of expertise represented among the Commission's members. (5) The Minister may appoint additional members of the Commission for the purposes of exercising specific functions of the Commission. An additional member is not required to have expertise in an area referred to in this section but is required to have expertise in an area relevant to the functions the member is to exercise. (6) Without limiting subsection (5), the Minister may appoint as an additional member for the purposes of that subsection a person who is a member of a subcommittee of the Commission. Any such appointment may be limited to a particular matter or matters, in addition to any limitation relating to specific functions. 2.9 Functions of Commission (cf previous s 23D) (1) The Independent Planning Commission has the following functions— (a) the functions of the consent authority under Part 4 for State significant or other development that are (subject to this Act) conferred on it under this Act, (b) any functions under this Act that are delegated to the Commission, (c) to advise the Minister or the Planning Secretary on any matter on which the Minister or the Planning Secretary requests advice from the Commission, (d) to hold a public hearing into any matter into which the Minister requests the Commission to hold a public hearing, (e) any function of a Sydney district or regional planning panel or a local planning panel in respect of a particular matter that the Minister requests the Commission to exercise (to the exclusion of the panel), (f) if a Sydney district or regional planning panel has not been appointed for any part of the State, any function that is conferred on any such panel under an environmental planning instrument applicable to