New South Wales: 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 that part or that is otherwise conferred on any such panel under this Act, (g) any other function conferred or imposed on it under this or any other Act. Note. State Environmental Planning Policy (Resources and Energy) 2021, Chapter 2, Part 2.4, Division 5 provides that a subcommittee appointed by the Independent Planning Commission exercises the gateway functions of the Mining and Petroleum Gateway Panel under that Policy. (2) The matters on which advice may be provided under subsection (1)(c), or into which a public hearing may be held under subsection (1)(d), include any general or particular planning or development matter, the administration of this Act or any related matter. 2.10 Constitution of Commission for particular matters (cf previous Sch 3, cl 4) (1) For the purpose of exercising any of its functions with respect to a particular matter, the Independent Planning Commission is, subject to any direction of the Minister under this section, to be constituted by one or more members determined by the chairperson of the Commission. (2) The Minister may give any of the following directions to the chairperson with respect to the constitution of the Commission for a particular matter or class of matters— (a) a direction as to the number of members that are to constitute the Commission, (b) a direction as to the specified members, or members with specified qualifications or expertise, that are to constitute the Commission. (3) The Commission may, at any time, exercise by the same or different members one or more of its functions. 2.11 Miscellaneous provisions relating to Commission (cf previous ss 23C, 23E) (1) Schedule 2 contains provisions with respect to the Independent Planning Commission (including with respect to public hearings by, and to the members and procedures of, the Commission). (2) The work of the Independent Planning Commission is, subject to this Act, to be allocated by the chairperson of the Commission. The chairperson may nominate another member to allocate the work of the Commission during any period the chairperson is unavailable. (2A) The allocation of the work of the Commission includes the determination of the constitution of the Commission for the matter in accordance with section 2.10. (3) The Independent Planning Commission may— (a) arrange for the use of the services of any staff or facilities of the Department of Planning and Environment or other public authority, and (b) engage such consultants as it requires to exercise its functions. (4) The Independent Planning Commission may, with the approval of the Minister, delegate any function of the Commission under this or any other Act (other than this power of delegation) to any person or body specified in the Minister's approval. Division 2.4 Sydney district and regional planning panels 2.12 Constitution of Sydney district and regional planning panels (cf previous s 23G) (1) The Sydney district planning panels specified in Part 3 of Schedule 2 are constituted for the particular parts of the designated Sydney districts so specified in relation to each such panel. (2) The regional planning panels specified in Part 3 of Schedule 2 are constituted for the particular parts of the State (other than a part within the designated Sydney districts) so specified in relation to each such panel. (3) A Sydney district or regional planning panel is not subject to the direction or control of the Minister (except in relation to the procedure of the panel and any directions authorised to be given to the panel under section 9.1 or other provision of this Act). (4) A Sydney district or regional planning panel is a NSW Government agency. (5) The Minister may, by order published on the NSW legislation website, amend Part 3 of Schedule 2 for any of the following purposes— (a) to constitute a Sydney district planning panel and to specify the part of the designated Sydney districts for which it is constituted (including by constituting a single panel for all of the designated Sydney districts), (b) to constitute a regional planning panel and to specify the part of the State (other than a part within the designated Sydney districts) for which it is constituted, (c) to abolish a Sydney district or regional planning panel, (d) to change the name of a Sydney district or regional planning panel or to change the part of the designated Sydney districts or State for which it is constituted, (e) to make savings and transitional provisions consequent on any of the above. 2.13 Members of Sydney district and regional planning panels (cf previous Sch 4, cl 2) (1) A Sydney district planning panel is to consist of the following 5 members— (a) 3 members appointed by the Minister (the State members), (b) 2 nominees of an applicable council (the council nominees) who are councillors, members of council staff or other persons nominated by the council. (2) A regional planning panel is to consist of the following 5 members— (a) 3 members appointed by the Minister (the State members), (b) 2 nominees of an applicable council (the council nominees) who are councillors, members of council staff or other persons nominated by the council. (3) A person is not eligible to be a member of a Sydney district or regional planning panel if the person is— (a) a property developer within the meaning of section 53 of the Electoral Funding Act 2018, or Note. Section 53 of the Electoral Funding Act 2018 provides that property developer includes a person who is a close associate of a property developer. (b) a real estate agent within the meaning of the Property, Stock and Business Agents Act 2002. However, a person is not ineligible to be a member of a Sydney district or regional planning panel merely because the person carries on the business of a planning consultant. (4) The State members of a Sydney district or regional planning panel are to be persons who have expertise in at least one area of planning, architecture, heritage, the environment, urban design, land economics, traffic and transport, law, engineering, tourism or government and public administration. In appointing State members, the Minister is to have regard to the need to have a range of expertise represented among the panel's members. (5) At least one of the council nominees of a Sydney district or regional planning panel is to be a person who has expertise in at least one area of planning, architecture, heritage, the environment, urban design, land economics, traffic and transport, law, engineering or tourism. (6) Each applicable council is to nominate 2 persons as council nominees for the purposes of a Sydney district or regional planning panel. If an applicable council fails to nominate one or more council nominees, a Sydney district or regional planning panel is not required to include 2 council nominees for the purposes of exercising its functions in relation to the area of the council concerned. (7) For the purposes of exercising the functions of a Sydney district or regional planning panel in relation to a matter, the council nominees on the panel are to be those nominated by the applicable council for the land to which the matter relates. (8) In this section— applicable council means the council of an area that is situated (wholly or partly) in a part of the State for which a Sydney district or regional planning panel is constituted. 2.14 Chairperson of Sydney district and regional planning panels (cf previous Sch 4, cl 2) (1) One of the State members of a Sydney district or regional planning panel is to be appointed by the Minister as chairperson of the panel. (2) The Minister is required to obtain the concurrence of Local Government NSW to the appointment of a chairperson unless Local Government NSW— (a) fails to notify its concurrence or refusal to concur within 21 days of being requested to do so by the Minister, or (b) refuses to concur in the appointment of 2 different persons proposed by the Minister. 2.15 Functions of Sydney district and regional planning panels (cf previous s 23G) A Sydney district or regional planning panel has the following functions— (a) the functions of the consent authority under Part 4 for regionally significant development that are (subject to this Act) conferred on it under this Act, (b) any functions under this Act of a council within its area that are conferred on it under section 9.6, (c) to advise the Minister or the Planning Secretary as to planning or development matters relating to the part of the State for which it is constituted (or any related matters) if requested to do so by the Minister or the Planning Secretary, (d) any other function conferred or imposed on it under this or any other Act. Note. Under section 9.7, a panel (or the Independent Planning Commission if acting in place of the panel) is, in the exercise of a function referred to in paragraph (b), taken to be the council and is to exercise the function to the exclusion of the council. 2.16 Miscellaneous provisions relating to Sydney district and regional planning panels (cf previous ss 23H, 118AD, 118AE) (1) Schedule 2 contains provisions with respect to the members and procedure of Sydney district or regional planning panels. (2) A Sydney district or regional planning panel is required to give written reasons for its decisions and make them publicly available on a website of or used by the panel. A decision is not invalid merely because of a failure to give or publish the reasons or all of the reasons for the decision. (3) The regulations may make provision for or with respect to the following— (a) the functions conferred under this Act on a Sydney district or regional planning panel, including its procedures in exercising its functions, (b) without limiting paragraph (a), providing that parties to matters being determined by a Sydney district or regional planning panel are not to be represented (whether by an Australian legal practitioner or any other person) or are only to be represented in specified circumstances, (c) the provision of information and reports by Sydney district or regional planning panels. (4) The Planning Secretary is, in the annual report of the Department of Planning and Environment, to report on the activities of Sydney district or regional planning panels during the reporting year under section 9.6. (5) Legal proceedings by or against a Sydney district or regional planning panel are to be taken in the name of the panel and not by or against the members of the panel. (6) A Sydney district or regional planning panel may, with the approval of the Minister, delegate any function of the panel under this or any other Act (other than this power of delegation) to— (a) a council, or (b) a local planning panel of a council, or (c) the general manager or other staff of a council, for any area or part of any area for which the Sydney district or regional planning panel is constituted. (7) For the avoidance of doubt, a member of a Sydney district or regional planning panel is a public official for the purposes of the Independent Commission Against Corruption Act 1988. Division 2.5 Local planning panels 2.17 Constitution of local planning panels (1) A council may constitute a single local planning panel for the whole of the area of the council. (2) The following councils must constitute a single local planning panel for the whole of the area of the council— (a) the council of an area that is wholly within the designated Sydney districts, (b) the council of the City of Wollongong, (c) the council of any other area prescribed by the regulations. (3) A single local planning panel may be constituted by 2 or more councils. In that case, any function exercisable by a council in relation to the panel is to be exercised jointly by all those councils. (4) The Minister may, under section 9.1, direct 2 or more particular councils referred to in subsection (2) to constitute a single local planning panel. (5) If a council fails to constitute a local planning panel that it is required to constitute, the Minister may constitute the panel and for that purpose is taken to be the council. (6) A local planning panel is subject to any directions of the Minister under section 9.1. (7) A local planning panel is not subject to the direction or control of the council, except in relation to any matter relating to the procedure of the panel (or to the time within which it is to deal with a matter) that is not inconsistent with any directions of the Minister under section 9.1. 2.18 Members of local planning panels (1) The members of a local planning panel are to be appointed by the relevant council. (2) Each local planning panel is to comprise (subject to this section) the following 4 members— (a) an approved independent person appointed as the chairperson of the panel with relevant expertise that includes expertise in law or in government and public administration, (b) 2 other approved independent persons with relevant expertise, (c) a representative of the local community who is not a councillor or mayor. (3) A person is not eligible to be a member of a local planning panel constituted by a council if the person is— (a) a councillor of that or any other council, or (b) a property developer within the meaning of section 53 of the Electoral Funding Act 2018, or Note. Section 53 of the Electoral Funding Act 2018 provides that property developer includes a person who is a close associate of a property developer. (c) a real estate agent within the meaning of the Property, Stock and Business Agents Act 2002. However, a person is not ineligible to be a member of a local planning panel merely because the person carries on the business of a planning consultant. (4) For the purposes of this section, an approved independent person is an independent person approved by the Minister for appointment to the local planning panel or a person selected from a pool of independent persons approved by the Minister for appointment to the local planning panel. The Minister may approve different pools of independent persons. (5) If the area of the relevant council is divided into wards, the council is to appoint representatives of the local community for each ward as members of the local planning panel. All those representatives are entitled to attend a meeting of the local planning panel, but only one of them designated by the chairperson of the panel comprises the quorum for the meeting and is entitled to vote and be heard on a matter before the panel. (6) The representative so designated by the chairperson for a matter before the panel is to be the representative for the ward that the chairperson considers is most closely associated with that matter. (7) Relevant expertise for the purposes of this section is expertise in at least one area of planning, architecture, heritage, the environment, urban design, economics, traffic and transport, law, engineering, tourism or government and public administration. 2.19 Functions of local planning panels (1) A local planning panel constituted by a council has the following functions— (a) the specified functions of a council as a consent authority under Part 4 that are conferred on it under this Act, (b) to advise the council on any planning proposal that has been prepared or is to be prepared by the council under section 3.33 and that is referred to the panel by the council, (c) to advise the council on any other planning or development matter that is to be determined by the council and that is referred to the panel by the council. (2) The Minister may give directions to councils under section 9.1 (either to particular councils or to councils generally) on the planning proposals that are required to be referred to a local planning panel for advice. (3) This section does not limit the functions that may be exercised by a local planning panel under this Act. 2.20 Miscellaneous provisions relating to local planning panels (1) Schedule 2 contains provisions with respect to the members and procedure of local planning panels. (2) A local planning panel is required to give written reasons for its decisions and make them publicly available on a website of or used by the panel. A decision is not invalid merely because of a failure to give or publish the reasons or all of the reasons for the decision. (3) The regulations may make provision for or with respect to the following— (a) the functions conferred under this Act on local planning panels, including the procedures of panels in exercising their functions, (b) without limiting paragraph (a), providing that parties are not to be represented (whether by an Australian legal practitioner or any other person) or are only to be represented in specified circumstances, (c) the provision of information or reports by councils with respect to the exercise of functions by local planning panels. (4) The council is to provide staff and facilities for the purpose of enabling a local planning panel to exercise its functions. (5) The council is to monitor the performance of local planning panels constituted by the council. (6) A council that has constituted a local planning panel must provide a report to the Planning Secretary, each year or other period directed by the Planning Secretary, as to the following— (a) whether a local planning panel had been constituted by the council during the reporting period, (b) the matters referred to the panel in the reporting period, (c) the persons appointed to the panel, (d) any other matters relating to the exercise of functions by the panel as directed by the Planning Secretary. (7) Legal proceedings by or against a local planning panel are to be taken in the name of the panel and not by or against the members of the panel. (8) A local planning panel may delegate any function of the panel under this or any other Act (other than this power of delegation) to the general manager or other staff of the council. Section 381 of the Local Government Act 1993 does not apply to any such delegation. (9) For the avoidance of doubt, a member of a local planning panel is a public official for the purposes of the Independent Commission Against Corruption Act 1988. Division 2.6 Community participation 2.21 Planning authorities and functions subject to community participation requirements (1) This Division applies to the following planning authorities— (a) the Minister, (b) the Planning Secretary, (c) (Repealed) (d) the Independent Planning Commission, (e) a Sydney district or regional planning panel, (f) a council, (g) a local planning panel, (h) a determining authority under Part 5, (i) a public authority prescribed by the regulations. (2) This Division applies to the exercise of the following planning functions by any such planning authority (relevant planning functions)— (a) planning instrument functions under Part 3, (b) development consent functions under Part 4, (c) environmental impact assessment functions under Division 5.1 if an environmental impact statement is required, (d) State significant infrastructure approval functions under Division 5.2, (e) contribution plan functions under Part 7, (f) any other function under this Act prescribed by the regulations. 2.22 Mandatory community participation requirements (1) Part 1 of Schedule 1 sets out the mandatory requirements for community participation by planning authorities with respect to the exercise of relevant planning functions. Note. The mandatory requirements include public exhibition for a minimum period, public notification requirements and the giving of reasons for decisions by planning authorities. The regulations under that Schedule may also require community consultation by applicants for consents or other approvals. (2) Those mandatory requirements for community participation include any other forms of community participation that are set out in a community participation plan under this Division and that are identified in that plan as mandatory requirements. 2.23 Community participation plans—preparation (1) A planning authority to which this Division applies is required to prepare a community participation plan about how and when it will undertake community participation when exercising relevant planning functions (subject to this section). Note. Schedule 1 requires a proposed plan to be publicly exhibited for at least 28 days. (2) A planning authority is to have regard to the following when preparing a community participation plan— (a) The community has a right to be informed about planning matters that affect it. (b) Planning authorities should encourage effective and on-going partnerships with the community to provide meaningful opportunities for community participation in planning. (c) Planning information should be in plain language, easily accessible and in a form that facilitates community participation in planning. (d) The community should be given opportunities to participate in strategic planning as early as possible to enable community views to be genuinely considered. (e) Community participation should be inclusive and planning authorities should actively seek views that are representative of the community. (f) Members of the community who are affected by proposed major development should be consulted by the proponent before an application for planning approval is made. (g) Planning decisions should be made in an open and transparent way and the community should be provided with reasons for those decisions (including how community views have been taken into account). (h) Community participation methods (and the reasons given for planning decisions) should be appropriate having regard to the significance and likely impact of the proposed development. (3) For the purposes of this Division— (a) a community participation plan prepared by the Planning Secretary applies to the exercise of relevant planning functions by the Minister, and (b) a general community participation plan prepared by the Planning Secretary applies to the exercise of relevant planning functions by determining authorities under Division 5.1 (other than councils or prescribed public authorities), and (c) the regulations may provide that the community participation plan of a planning authority applies to the exercise of relevant planning functions by another planning authority and that the other planning authority is not required to prepare its own community participation plan. (4) A council need not prepare a separate community participation plan if it includes all the matters required under this section in its plan and strategies under the Local Government Act 1993, section 402A. 2.24 Community participation plans—miscellaneous provisions (1) Community participation plans are to be published on the NSW planning portal. (2) If the validity of a community participation plan has not been challenged in proceedings commenced in the Court within 3 months after the plan is published, the plan is taken to have been validly made under this Division. (3) Community participation plans are to be reviewed periodically. (4) The regulations may make provision for or with respect to— (a) the form, content and procedures for making and publishing community participation plans (or any amendment of those plans), and (b) reports on the implementation of community participation plans. Division 2.7 Miscellaneous 2.25 NSW planning portal and other online services and information (cf previous ss 158B, 158C) (1) The Planning Secretary is to establish and facilitate the online delivery of planning services and information (including the NSW planning portal). (2) Schedule 3 contains provisions relating to the NSW planning portal and the online delivery of those services and information. 2.26 Obligation of Commission and panels to consult with council about certain decisions (cf previous s 23M) (1) The Independent Planning Commission or a Sydney district or regional planning panel must not exercise a function that will result in the making of a decision that will have, or that might reasonably be expected to have, a significantly adverse financial impact on a council until after it has consulted with the council. (2) This section does not apply to the determination of a development application made by a council. 2.27 Obligations of councils to assist Commission and panels (cf previous s 23N) (1) The Independent Planning Commission or a Sydney district or regional planning panel is entitled, on request made to the general manager of a council— (a) to have access to, and to make copies of and take extracts from, records of the council relevant to the exercise of the Commission's or panel's functions, and (b) to the use of the staff and facilities of the council in order to exercise the Commission's or panel's functions, and (c) to any other assistance or action by the council for the purposes of exercising the Commission's or panel's functions. (2) The regulations may make provision with respect to assistance and action under this section. 2.28 Exclusion of personal liability (cf previous ss 23(9), 158) A matter or thing done, or omitted to be done, by— (a) the Minister, or (b) the Planning Secretary, or (c) any person employed in the Department of Planning and Environment, or (d) an investigation officer under Part 9, or (e) a member of a panel established by the Minister or the Planning Secretary under this Part, or (f) a member of the Independent Planning Commission, or (g) a member of a Sydney district or regional planning panel, or (h) a member of a local planning panel, or (i) any individual acting under the direction of a person or body referred to above, or (j) any individual acting as the delegate of a person or body referred to above, does not subject the Minister, the Planning Secretary or any such person, officer, member or individual so acting personally to any action, liability, claim or demand if the matter or thing was done, or omitted to be done, in good faith for the purpose of the administration of this Act. 2.29 Delegation by public authorities other than councils (cf previous s 153A) (1) In this section, public authority does not include a council. Note. See sections 377–381 of the Local Government Act 1993 in relation to the delegation of functions by councils. (2) A public authority may delegate any function of the public authority under this Act (other than this power of delegation) to a member of staff of the public authority. If the public authority is a chief executive officer, the function may be delegated to any member of staff of the public authority of which he or she is the chief executive officer. (3) A member of staff of a public authority may delegate any function of the member of staff under this Act (other than this power of delegation) to any other member of staff of the public authority. However, if the function is a delegated function, the function cannot be subdelegated unless subdelegation is authorised by the terms of the original delegation. (4) A power conferred by this section is in addition to any other power of delegation of the public authority or member of staff or any power of a person to exercise functions on behalf of the public authority. 2.30 Section 381 of Local Government Act 1993 excluded Section 381 of the Local Government Act 1993 does not apply to a delegation under this Act to the general manager or other employee of a council. 2.31 Publication of instruments of delegation (1) Any instrument of delegation under this Act by the Minister, the Planning Ministerial Corporation, the Planning Secretary, the Independent Planning Commission, a Sydney district planning panel or a regional planning panel is to be published on the NSW planning portal. (2) Failure to comply with this section does not affect the validity of any such delegation. Part 3 Planning instruments Note. This Part deals with the following planning instruments— (a) strategic plans (comprising regional strategic plans and district strategic plans) and local strategic planning statements, (b) environmental planning instruments (comprising State environmental planning policies and local environmental plans), (c) development control plans. Division 3.1 Strategic planning 3.1 Definitions (cf previous s 75AA) (1) In this Division— district means— (a) a city in the Six Cities Region, or (b) a part of a region declared to be a district under section 3.2(b). district strategic plan means a district strategic plan made under this Division. dwelling means a room or suite of rooms occupied or used or so constructed or adapted to be capable of being occupied or used as a separate domicile. housing target means a target for a district for the number of net additional dwellings required for each local government area in the district for the next 5, 10 and 20 years, and may include a target for development consents to be granted to achieve the net additional dwellings. local strategic planning statement means a local strategic planning statement made under this Division. region means— (a) the Six Cities Region, or (b) any other area declared to be a region under section 3.2(a). regional strategic plan means a regional strategic plan made under this Division. strategic plan means a regional strategic plan or a district strategic plan. (2) For the purposes of this Division, preparing or making a strategic plan or local strategic planning statement includes preparing or making a strategic plan or local strategic planning statement to amend, replace or repeal a strategic plan or local strategic planning statement. 3.2 Declaration of regions and districts (cf previous s 75AB) The Minister may, by order published on the NSW legislation website, declare— (a) any area of the State (other than the Six Cities Region) to be a region for the purposes of this Division, and (b) any part of the Six Cities Region or other region to be a district for the purposes of this Division. 3.3 Regional strategic plans—preparation and content (1) The Planning Secretary may, or must if directed to do so by the Minister, prepare a draft regional strategic plan for a region. (2) A draft regional strategic plan must include or identify the following— (