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Environmental Planning and Assessment Regulation 2000

As at 27 July 2012

Does not include amendments by:

Environmental Planning and Assessment Amendment Act 2008 No 36, Schs 3.3 and 4.2 [4] and [6] (not commenced)

Reprint history:

Reprint No 1

21 August 2001

Reprint No 2

11 November 2003

Reprint No 3

15 February 2005

Reprint No 4

13 March 2007

Reprint No 5

21 September 2010

Part 1 – Preliminary

1 Name of Regulation

This Regulation is the Environmental Planning and Assessment Regulation 2000.

2 Commencement

This Regulation commences on 1 January 2001.

3 Definitions

(cf clause 3 of EP&A; Regulation 1994)

(1) In this Regulation:";accredited body corporate"; has the same meaning as in the Building Professionals Act 2005.";alternative solution"; has the same meaning as in the Building Code of Australia.";approval body"; has the same meaning as in section 90A of the Act.";assessment method"; has the same meaning as in the Building Code of Australia.";Australian Rail Track Corporation Ltd"; means the Australian Rail Track Corporation Ltd (ACN 081 455 754).";BASIX affected building"; means any building that contains one or more dwellings, but does not include a hotel or motel.";BASIX affected development"; means any of the following development that is not BASIX excluded development:

(a) development that involves the erection (but not the relocation) of a BASIX affected building,

(b) development that involves a change of building use by which a building becomes a BASIX affected building,

(c) development that involves the alteration, enlargement or extension of a BASIX affected building, where the estimated construction cost of the development is:

(i) $100,000 or more--in the case of development for which a development application or an application for a complying development certificate is made on or after 1 October 2006 and before 1 July 2007, or

(ii) $50,000 or more--in the case of development for which a development application or an application for a complying development certificate is made on or after 1 July 2007,

(d) development for the purpose of a swimming pool or spa, or combination of swimming pools and spas, that services or service only one dwelling and that has a capacity, or combined capacity, of 40,000 litres or more.

";BASIX certificate"; means a certificate issued by the Director-General under clause 164A.";BASIX excluded development"; means any of the following development:

(a) development for the purpose of a garage, storeroom, car port, gazebo, verandah or awning,

(b) alterations, enlargements or extensions to a building listed on the State Heritage Register under the Heritage Act 1977,

(c) alterations, enlargements or extensions that result in a space that cannot be fully enclosed (for example, a verandah that is open or enclosed by screens, mesh or other materials that permit the free and uncontrolled flow of air), other than a space can be fully enclosed but for a vent needed for the safe operation of a gas appliance,

(d) alterations, enlargements or extensions that the Director-General has declared, by order published in the Gazette, to be BASIX excluded development.

";BASIX optional development"; means any of the following development that is not BASIX excluded development:

(a) development that involves the alteration, enlargement or extension of a BASIX affected building, where the estimate of the construction cost of the development is:

(i) less than $100,000--in the case of development for which a development application or an application for a complying development certificate is made on or after 1 October 2006 and before 1 July 2007, or

(ii) less than $50,000--in the case of development for which a development application or an application for a complying development certificate is made on or after 1 July 2007,

(b) development for the purpose of a swimming pool or spa, or combination of swimming pools and spas, that services or service only one dwelling and that has a capacity, or combined capacity, of less than 40,000 litres.

";building premises";, in relation to a building, means the building and the land on which it is situated.";capital investment value"; of a development or project includes all costs necessary to establish and operate the project, including the design and construction of buildings, structures, associated infrastructure and fixed or mobile plant and equipment, other than the following costs:

(a) amounts payable, or the cost of land dedicated or any other benefit provided, under a condition imposed under Division 6 or 6A of Part 4 of the Act or a planning agreement under that Division,

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

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

(d) GST (within the meaning of A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth).

";Category 1 fire safety provision"; means the following provisions of the Building Code of Australia, namely, EP1.3, EP1.4, EP1.6, EP2.1, EP2.2 and EP3.2 in Volume One of that Code and P2.3.2 in Volume Two of that Code.";Category 2 fire safety provision"; means the following provisions of the Building Code of Australia, namely, CP9, EP1.3, EP1.4, EP1.6, EP2.2 and EP3.2 in Volume One of that Code.";Category 3 fire safety provision"; means the following provisions of the Building Code of Australia, namely, EP1.3, EP1.4, EP1.6, EP2.2 and EP3.2 in Volume One of that Code.";class";, in relation to a building or part of a building, means:

(a) in a provision of this Regulation that imposes requirements with respect to a development consent, the class to which the building belongs, as identified by that consent, or

(b) in any other provision of this Regulation, the class to which the building or part of a building belongs, as ascertained in accordance with the Building Code of Australia.

";Class 1 aquaculture development"; means development of the kind referred to in clause 5 (1) (d).";coastal council"; means a council whose area, or part of whose area, is included within the coastal zone (within the meaning of the Coastal Protection Act 1979) or whose area includes land that adjoins the tidal waters of the Hawkesbury River, Sydney Harbour and Botany Bay, and their tributaries.";concurrence authority"; means a person whose concurrence is, by the Act or an environmental planning instrument, required by the consent authority before determining a development application.";contributions plan"; means a contributions plan referred to in section 94EA of the Act.";deemed-to-satisfy provisions"; has the same meaning as in the Building Code of Australia.";Director-General"; means the Director-General of the Department.";dwelling";, in relation to a BASIX affected building, means a room or suite of rooms occupied or used, or so constructed or adapted as to be capable of being occupied or used, as a separate domicile.";entertainment venue"; means a building used as a cinema, theatre or concert hall or an indoor sports stadium.";environmental impact statement"; means an environmental impact statement referred to in section 78A, 112 or 115Y of the Act.";existing use right"; means a right conferred by Division 10 of Part 4 of the Act.";exit"; has the same meaning as in the Building Code of Australia.";fire alarm communication link"; means that part of a fire alarm system which relays a fire alarm signal from the system to an alarm monitoring network.";Fire Commissioner"; means the Commissioner of New South Wales Fire Brigades.";fire compartment"; has the same meaning as in the Building Code of Australia.";fire link conversion"; means the conversion of a fire alarm communication link from connection with the fire alarm monitoring network operated by the New South Wales Fire Brigades to connection with an alarm monitoring network operated by a private service provider.";fire link conversion schedule"; means a conversion schedule referred to in clause 168A (2) (a).";fire protection and structural capacity"; of a building means:

(a) the structural strength and load-bearing capacity of the building, and

(b) the measures to protect persons using the building, and to facilitate their egress from the building, in the event of fire, and

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

";fire safety engineer"; means a person holding Category C10 accreditation under the Building Professionals Act 2005.";fire safety requirement"; means a requirement under the Building Code of Australia relating to:

(a) a fire safety system, as defined in the Building Code of Australia, and components of a fire safety system, or

(b) the safety of persons in the event of fire, or

(c) the prevention, detection or suppression of fire.

";fire safety schedule"; means a schedule referred to in clause 168 (1), 168A (2) (b) or 182 (2).";local newspaper"; means a newspaper circulating throughout the relevant area at intervals of not more than 2 weeks.";nominated integrated development"; means development of the kind referred to in clause 5 (1) (b).";other advertised development"; means development of the kind referred to in clause 5 (2).";performance requirement"; has the same meaning as in the Building Code of Australia.";planning agreement"; means an agreement referred to in section 93F of the Act.";private service provider"; means a person or body that has entered into an agreement with the New South Wales Fire Brigades to monitor fire alarm systems.";qualified designer"; means a person registered as an architect in accordance with the Architects Act 2003. A building designer may be able to be registered as an architect in accordance with the Architects Act 2003 even though the person may have no formal qualifications in architecture.";regional panel"; means a joint regional planning panel.";relevant BASIX certificate";, in relation to development, means:

(a) in the case of development the subject of development consent:

(i) a BASIX certificate that is applicable to the development when development consent is granted or (in the case of development consent modified under section 96 of the Act) modified, or

(ii) if a replacement BASIX certificate accompanies any subsequent application for a construction certificate, the replacement BASIX certificate applicable to the development when the construction certificate is issued or (in the case of a construction certificate modified under clause 148) modified, or

(b) in the case of development the subject of a complying development certificate, a BASIX certificate that is applicable to the development when the complying development certificate is granted or (in the case of a complying development certificate modified under section 87 of the Act) modified.

";relevant submission period"; means:

(a) in relation to submissions concerning a draft development control plan, the submission period specified for the plan in the notice referred to in clause 18 (1), or

(b) in relation to submissions concerning a draft contributions plan, the submission period specified for the plan in the notice referred to in clause 28, or

(c) in relation to submissions concerning designated development that has been notified as required by section 79 (1) of the Act, the submission period specified for the development in the notice referred to in clause 78 (1), or

(d) (Repealed)

(e) in relation to submissions concerning nominated integrated development that has been notified as required by section 79A (1) of the Act, the submission period specified for the development in the notice referred to in clause 89 (1), or

(f) in relation to submissions concerning development that has been notified or advertised as required by a development control plan referred to in section 79A (2) of the Act, the submission period specified for the development in the instrument by which the development has been so notified or advertised, or

(g) (Repealed)

(h) in relation to submissions concerning development of a kind referred to in two or more of paragraphs (c), (d), (e) and (f), the longer or longest of those periods.

";required";, when used as an adjective, has the same meaning as in the Building Code of Australia.";residential flat development"; has the same meaning as in State Environmental Planning Policy No 65--Design Quality of Residential Flat Development.";section 94 condition"; means a condition under section 94 of the Act requiring the dedication of land or the payment of a monetary contribution, or both.";section 94 contribution"; means the dedication of land, the payment of a monetary contribution or the provision of a material public benefit, as referred to in section 94 of the Act.";section 94A condition"; means a condition under section 94A of the Act requiring the payment of a levy.";section 94A levy"; means the payment of a levy, as referred to in section 94A of the Act.";site compatibility certificate"; means the following:

(a) site compatibility certificate (affordable rental housing),

(b) site compatibility certificate (infrastructure),

(c) site compatibility certificate (seniors housing).

";site compatibility certificate (affordable rental housing)"; means a certificate issued under clause 37 (5) of State Environmental Planning Policy (Affordable Rental Housing) 2009.";site compatibility certificate (infrastructure)"; means a certificate issued under clause 19 (5) of State Environmental Planning Policy (Infrastructure) 2007.";site compatibility certificate (seniors housing)"; means a certificate issued under clause 25 (4) of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004.";temporary building"; means:

(a) a temporary structure, or

(b) a building that is stated to be a temporary building in a development consent or complying development certificate granted or issued in relation to its erection.

";the Act"; means the Environmental Planning and Assessment Act 1979.";threatened species development"; means development of the kind referred to in clause 5 (1) (c).

(2) A reference in this Regulation to building work does not include a reference to any physical activity involved in the erection of a temporary structure. ";Building work"; is defined by the Act to mean any physical activity involved in the erection of a building.

(3) A reference in this Regulation to an existing building does not include a reference to a temporary structure.

3A Exclusion from definition of ";development";

For the purposes of the definition of ";development"; in section 4 (1) of the Act, the demolition of a temporary structure is prescribed as not being such development.

4 What is designated development?

(cf clause 53C of EP&A; Regulation 1994)

(1) Development described in Part 1 of Schedule 3 is declared to be designated development for the purposes of the Act unless it is declared not to be designated development by a provision of Part 2 or 3 of that Schedule.

(2) Part 4 of Schedule 3 defines certain words and expressions used in that Schedule.

(3) Part 5 of Schedule 3 prescribes how certain distances are to be measured for the purposes of that Schedule.

(4) Schedule 3, as in force when a development application is made, continues to apply to and in respect of the development application regardless of any subsequent substitution or amendment of that Schedule, and the application is unaffected by any such substitution or amendment.

(5) References in subclause (4) to Schedule 3 include references to Schedule 3 to the Environmental Planning and Assessment Regulation 1994.

5 Advertised development

(cf clause 63 of EP&A; Regulation 1994)

(1) For the purposes of the definition of ";advertised development"; in section 4 (1) of the Act, the following types of development (not being designated development or State significant development) are identified as advertised development:

(a) (Repealed)

(b) integrated development (not being threatened species development or Class 1 aquaculture development) that requires an approval (within the meaning of section 90A of the Act) under:

(i) a provision of the Heritage Act 1977 specified in section 91 (1) of the Act, or

(ii) a provision of the Water Management Act 2000 specified in section 91 (1) of the Act, or

(iii) a provision of the Protection of the Environment Operations Act 1997 specified in section 91 (1) of the Act,

referred to in this Regulation as ";nominated integrated development";,

(c) development referred to in section 78A (8) (b) of the Act, referred to in this Regulation as ";threatened species development";,

(d) development that, pursuant to State Environmental Planning Policy No 62--Sustainable Aquaculture, is Class 1 aquaculture development, referred to in this Regulation as ";Class 1 aquaculture development";.

(2) For the purposes of this Regulation, each of the following kinds of development, namely:

(a) nominated integrated development,

(b) threatened species development,

(c) Class 1 aquaculture development,

(d) any development that is identified as advertised development by an environmental planning instrument or a development control plan,

is referred to in this Regulation as ";other advertised development";.

(3) (Repealed)

6 When is public notice given?

(cf clause 5 of EP&A; Regulation 1994)

Public notice in a local newspaper is given for the purposes of this Regulation when the notice is first published in a local newspaper, even if the notice is required to be published more than once or in more than one newspaper.

7 Building Code of Australia

(cf clause 5A of EP&A; Regulation 1994)

(1) For the purposes of the definition of ";Building Code of Australia"; in section 4 (1) of the Act:

(a1) the document referred to in that definition is:

(i) the document published in October 1996 under the title Building Code of Australia, or

(ii) if the document referred to in subparagraph (i) (or any replacement document under this subparagraph) is replaced by another document published under a title that includes the words ";Building Code of Australia"; together with a reference to the year 2004 or a later year, that other document, and

(a) all amendments to that Code that are from time to time made by the Australian Building Codes Board are prescribed, and

(b) all variations of that Code that are from time to time approved by the Australian Building Codes Board in relation to New South Wales are prescribed.

(2) Any such amendment or variation comes into effect on the adoption date specified in that regard for New South Wales in the document by which the amendment or variation is published on behalf of the Australian Building Codes Board.

(2A), (3) (Repealed)

8 Notes

(cf clause 4 of EP&A; Regulation 1994)

The explanatory note, table of contents and notes in this Regulation do not form part of this Regulation.

Part 1A – Transitional Part 3A projects

8A Definitions

(1) In this Part:";environmental assessment requirements"; for a project (including a concept plan for a project) means environmental assessment requirements prepared by the Director-General under section 75F of the Act.";project"; means development to which Part 3A of the Act applies.";project application"; means:

(a) an application for the Minister's approval to carry out a project under Part 3A of the Act, or

(b) an application for the Minister's approval for a concept plan for a project under Part 3A of the Act, or

(c) a single application for both an approval to carry out a project under Part 3A of the Act and for a concept plan for a project under that Part.

(2) In this Part:

(a) a reference to the end of the public consultation period for a project or concept plan is a reference to the end of the period of 30 days referred to in section 75H (3) of the Act in relation to the project or concept plan, and

(b) a reference to the end of the proponent's environmental assessment period for a project or concept plan is a reference to the time at which the proponent has complied with all of the Director-General's requirements under section 75H of the Act.

(3) In this Part, a reference to section 75F, 75H or 75I of the Act includes, in the case of a concept plan for a project, a reference to any such section as applied by section 75N of the Act.

8B Matters for environmental assessment and Ministerial consideration

The Director-General's report under section 75I of the Act in relation to a project is to include the following matters (to the extent that those matters are not otherwise included in that report in accordance with the requirements of that section):

(a) an assessment of the environmental impact of the project,

(b) any aspect of the public interest that the Director-General considers relevant to the project,

(c) the suitability of the site for the project,

(d) copies of submissions received by the Director-General in connection with public consultation under section 75H or a summary of the issues raised in those submissions.

Section 75J (2) of the Act requires the Minister to consider the Director-General's report (and the reports, advice and recommendations contained in it) when deciding whether or not to approve the carrying out of a project.

8C Time limits for dealing with applications and other matters

The following time limits are prescribed for dealing with applications and other matters under Part 3A of the Act:

(a) The time within which the Director-General is to notify the proponent of environmental assessment requirements with respect to a project or concept plan is 28 days after the proponent requests the Director-General to prepare those requirements.

(b) The time within which the Director-General is to accept the environmental assessment with respect to a project or concept plan, or require the proponent to submit a revised environmental assessment, under section 75H of the Act is 21 days after the environmental assessment is received by the Director-General.

(c) The time within which the Director-General is required to send copies of submissions received or a report of the issues raised in those submissions to the proponent and others under section 75H (5) of the Act (or to notify the proponent that no submissions were received) is 10 days after the end of the public consultation period for the project or concept plan.

8D Rejection of applications if proponent fails to comply with requirements

(1) This clause applies to project applications.

(2) If:

(a) any such application has not been duly made, and

(b) the Director-General has notified the proponent of the action required to ensure that the application is duly made, and

(c) the proponent has failed to take that action within 14 days after being so notified,

the Minister may decide to reject the application without determining whether to approve or disapprove of the carrying out of the project or to give or refuse to give approval for the concept plan (as the case requires).

(3) If:

(a) the proponent has failed to comply with the Director-General's requirements under section 75H of the Act in connection with an application, and

(b) the Director-General has notified the proponent of the requirements that have not been complied with, and

(c) the proponent has failed to comply with those requirements within 21 days after being so notified,

the Minister may decide to reject the application without determining whether to approve or disapprove of the carrying out of the project or to give or refuse to give approval for the concept plan (as the case requires).

(4) An application is taken to be rejected and never to have been made when the proponent is given notice of the Minister's decision to reject the application under this clause.

(5) The Director-General must refund to the proponent the whole of any fee paid in connection with an application that is rejected under this clause.

8E Provisions relating to appeals

(1) Date of receipt of notice of determination For the purposes of determining the commencement of the appeal period under section 75K (2) (a), 75L (3) or 75Q (2) (a) of the Act, notice of the determination concerned is received on the date that the notice is received (or taken to have been received) in accordance with section 153 of the Act.

(2) Proponent appeal relating to approval of project--deemed refusal For the purposes of section 75K (2) (b) of the Act, the date on which a pending application for approval to carry out a project is taken to have been refused for the purposes only of enabling an appeal within 3 months after the date of the deemed refusal is as follows:

(a) 60 days from the end of the proponent's environmental assessment period for the project, except as provided by paragraph (b) or (c),

(b) 120 days from the end of that period if the Director-General notifies the proponent, when notifying the environmental assessment requirements for the project, that the project involves a complex environmental assessment and approval process,

(c) 30 days from the end of that period if the Director-General notifies the proponent, when notifying the environmental assessment requirements for the project, that the project does not involve a complex environmental assessment and approval process.

(3) Proponent appeal relating to concept plan or modification of concept plan--deemed refusal For the purposes of section 75Q (2) (b) of the Act, the date on which a pending application for approval of a concept plan or to modify a concept plan is taken to have been refused for the purposes only of enabling an appeal within 3 months after the date of the deemed refusal is as follows:

(a) 60 days from the end of the proponent's environmental assessment period for the concept plan, except as provided by paragraph (b) or (c),

(b) 120 days from the end of that period if the Director-General notifies the proponent, when notifying the environmental assessment requirements for the concept plan, that the concept plan involves a complex environmental assessment and approval process,

(c) 30 days from the end of that period if the Director-General notifies the proponent, when notifying the environmental assessment requirements for the concept plan, that the concept plan does not involve a complex environmental assessment and approval process.

(4) Proponent appeal relating to modifications of approval The time within which an appeal may be made under section 75W (5) of the Act is 3 months after:

(a) the date on which the proponent received (or is taken to have received) notice of the determination of the request for a modification of the approval for a project in accordance with section 153 of the Act, or

(b) the expiration of the period of 40 days after the request for the modification was made during which the Minister has failed to determine the request.

8F Owner's consent or notification

(1) The consent of the owner of land on which a project is to be carried out is required for a project application or modification application unless:

(a) the application is made by a public authority, or

(b) the application relates to a critical infrastructure project, or

(c) the application relates to a mining or petroleum production project, or

(d) the application relates to a linear infrastructure project, or

(e) the application relates to a project on land with multiple owners designated by the Director-General for the purposes of this clause.

(1A) The consent of the New South Wales Aboriginal Land Council is required for a project application or modification application relating to land owned by a Local Aboriginal Land Council if the consent of the Local Aboriginal Land Council is required as owner of the land to the application.

(2) Any such consent may be obtained at any time before the determination of the application.

(3) If the consent of the owner of the land is not required for a project application under this clause, then the proponent is required to give notice of the application:

(a) in the case of a linear infrastructure project or a project designated under subclause (1) (e)--to the public by advertisement published in a newspaper circulating in the area of the project before the start of the public consultation period for the project, or

(b) in the case of a project that comprises mining or petroleum production (other than a project that also comprises a linear infrastructure project)--to the public by advertisement published in a newspaper circulating in the area of the project before the end of the period of 14 days after the application is made, or

(c) in the case of a critical infrastructure project (other than a project that also comprises a linear infrastructure project or mining or petroleum production project)--to the owner of the land before the end of period of 14 days after the application is made, or

(d) in any other case--to the owner of the land at any time before the application is made.

(4) In this section:";linear infrastructure project"; means development for the purposes of linear transport or public utility infrastructure.";mining or petroleum production"; includes any activity that is related to mining or petroleum production, but does not include any activity to the extent that it is carried out on land that is a state conservation area reserved under the National Parks and Wildlife Act 1974.";modification application"; means a request for modification of approval for a project under section 75W of the Act.

8G Public information about documents relating to projects

(1) This clause applies to the duty of the Director-General under section 75X (2) of the Act to make specified documents relating to a project publicly available.

(2) The documents are to be made available on the Department's website and in such other locations as the Director-General determines.

(3) The documents are to be posted on the Department's website and in those other locations within 14 days of:

(a) in the case of a document that is an application, request or submission--the date on which the application, request or submission is made, or

(b) in the case of a document that is a determination of environmental assessment requirements, a report or an approval--the date on which the determination, report or approval is made or given.

(4) In addition to the documents referred to in section 75X (2) of the Act, the Director-General is to include on the Department's website and in such other locations as the Director-General determines the following documents:

(a) the declaration of development as a project to which Part 3A of the Act applies or its declaration as a critical infrastructure project,

(b) guidelines published under section 75F or 75H of the Act,

(c) any environmental assessment in relation to a project that has been placed on public exhibition under section 75H of the Act,

(d) responses to submissions, preferred project reports and other material in relation to a project provided to the Director-General by the proponent after the end of the public consultation period (whether under section 75H (6) of the Act or otherwise),

(e) reports of panels under section 75G of the Act (as in force before its repeal) or of reviews by the Planning Assessment Commission or reports by the Planning Assessment Commission where a public hearing has been held,

(f) any reasons given to the proponent by the Minister as referred to in section 75X (3) of the Act.

(5) A document may be made available on the Department's website by providing an electronic link to the document on another website.

8H Fees

The fees for applications and exercise of functions under Part 3A of the Act are as set out in Part 15 of this Regulation.

8I Enforcement: critical infrastructure

In accordance with section 75R (5) of the Act, Division 2A of Part 6 of the Act applies to a critical infrastructure project only to the extent that it authorises the Minister or the Director-General to give an order or exercise any other function under that Division.

8J Transitional provisions

(1AA) The Director-General may accept, as an application for approval of a project under Part 3A of the Act, any development application made under Part 4 of the Act with respect to any development before it becomes a project to which Part 3A of the Act applies. The Director-General may, for that purpose, require any matter to be provided by the applicant that he or she could require to be included in the application under section 75E of the Act.

(1) The Director-General may adopt (with or without modification), as environmental assessment requirements for a project or concept plan, environmental assessment requirements issued by the Director-General under Part 4 or Part 5 of the Act with respect to any development or activity before it becomes a project to which Part 3A of the Act applies.

(2) The Director-General may accept (with or without modification), as an environmental assessment for a project or part of a project or concept plan:

(a) an environmental impact statement obtained in accordance with the requirements of the Director-General under Part 4 or Part 5 of the Act with respect to any development or activity before it becomes a project or part of a project to which Part 3A of the Act applies, or

(b) a statement of environmental effects (as referred to in clause 2 (1) (c) of Schedule 1) prepared in connection with the development concerned before it becomes a project or part of a project to which Part 3A of the Act applies, or

(c) a written assessment arising out of the consideration, under section 111 of the Act, of the environmental impact of an activity and prepared before the activity becomes a project or part of a project to which Part 3A of the Act applies.

(2A) If the Director-General accepts (with or without modification) an environmental impact statement, a statement of environmental effects or a written assessment as an environmental assessment for a project or part of a project or a concept plan:

(a) the Director-General is taken to have prepared environmental assessment requirements in respect of the project or part of a project or concept plan, and

(b) the environmental assessment as so accepted is taken to comply with those requirements.

(3) The Director-General may accept, as a period of public availability of the environmental assessment for a project or part of a project or concept plan (under section 75H (3) of the Act), a period of public exhibition of an environmental impact statement or a statement of environmental effects referred to in subclause (2) before the relevant development or activity becomes a project or part of a project to which Part 3A of the Act applies. For that purpose, and to avoid doubt, if the period of public exhibition is less than 30 days, it is accepted only to the extent of the actual period of public exhibition.

(3A) If any such period of public exhibition of an environmental impact statement or a statement of environmental effects is accepted by the Director-General, the proponent must provide the Director-General with any written submissions made during the public exhibition period in relation to the relevant development or activity.

(4) Despite its repeal, section 88A of the Act continues to apply (and Parts 3A and 5.1 and Division 4.1 of Part 4 of the Act do not apply) to development that is the subject of a development application that was directed to be referred to the Minister under that section before its repeal.

(4A) If a development application is made after the commencement of Part 3A of the Act in respect of any development that:

(a) was, immediately before the repeal of section 89 of the Act, the subject of a direction under that section, and

(b) is not a project to which Part 3A of the Act applies,

the Minister may direct that the application is to be determined (unless the development application is withdrawn by the applicant) as if the amendments made to the Act by Schedule 1 to the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 had not been made.

(5) If a development application is made after the commencement of Part 3A of the Act in respect of any development that, immediately before the commencement of Part 3A, was declared to be State significant development by notice in force under section 76A (7) of the Act, the Minister may direct that the application is to be determined (unless the development application is withdrawn by the applicant) as if the amendments made to the Act by Schedule 1 to the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 had not been made.

(6) Clause 89 of Part 17 to Schedule 6 to the Act extends to development applications pending on the commencement of Part 3A of the Act for development that was State significant development on the commencement of the State Environmental Planning Policy (State Significant Development) 2005.

(7) If:

(a) a development application was made before the commencement of Part 3A of the Act on the basis that the development was State significant development, and

(b) the Minister is required to form an opinion that the development is State significant development in order to determine the application on that basis (but the Minister had not, before that commencement, formed an opinion on the matter),

the Minister may, after that commencement, form an opinion that the development was, at the time the application was made, State significant development. In that case, the application is to be determined (unless withdrawn by the applicant) as if the amendments made to the Act by Schedule 1 to the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 had not been made. The references to State significant development in this subclause refer to the meaning that term had before the commencement of Part 3A and not to its current meaning.

(8) For the purposes only of modification, the following development consents are taken to be approvals under Part 3A of the Act and section 75W of the Act applies to any modification of such a consent:

(a) a development consent granted by the Minister under section 100A or 101 of the Act,

(b) a development consent granted by the Minister under State Environmental Planning Policy No 34--Major Employment-Generating Industrial Development,

(c) a development consent granted by the Minister under Part 4 of the Act (relating to State significant development) before 1 August 2005 or under clause 89 of Schedule 6 to the Act,

(d) a development consent granted by the Land and Environment Court, if the original consent authority was the Minister and the consent was of a kind referred to in paragraph (c).

The development consent, if so modified, does not become an approval under Part 3A of the Act.

(8A) Subclause (8), as in force before its substitution by the Environmental Planning and Assessment Amendment (Miscellaneous) Regulation 2010, applies to any development consent for which approval for the treatment of the consent as an approval for the purposes of section 75W of the Act:

(a) was given before that substitution, or

(b) is given after that substitution, but where the application for the approval was made before that substitution.

(8B) The Director-General may waive any fee payable in respect of an application under section 75W of the Act if the application relates to a development consent that is taken to be an approval under Part 3A of the Act and a fee has been paid in respect of the application under section 96 of the Act.

(9) For the purposes of this clause, and to avoid doubt, a development application is made by a person when the person first applies to the consent authority for consent to carry out the particular development, whether or not the application at that time had been consented to by the owner of the land to which the development application relates.

8K Transitional provision--existing mining leases

(1) Despite its repeal by Schedule 7.11 to the Amending Act, section 74 of the Mining Act 1992 (Mining unaffected by Environmental Planning and Assessment Act 1979) continues to have effect in respect of an existing mining lease in respect of which mining operations are carried out underground until:

(a) the end of the relevant transition period, or

(b) such time as an approval is given to carry out mining operations in the mining area,

whichever is the sooner.

(2) However, if any such approval is limited to the carrying out of mining operations in a part of the mining area only, section 74 of the Mining Act 1992 continues to have effect in respect of so much of the existing mining lease as relates to the other parts of the mining area, but only until the end of the relevant transition period or until such time as an approval is given to carry out mining operations in those other parts (whichever is the sooner).

(3) In this clause:";Amending Act"; means the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005.";approval"; means an approval under Part 3A of the Act, but does not include the approval of a concept plan under that Part.";existing mining lease"; means a mining lease in force immediately before 16 December 2005.";mining area";, ";mining lease"; and ";mining operations"; have the same meanings as in the Mining Act 1992.";relevant transition period"; means:

(a) the period ending on 30 September 2012 if, on or before 16 December 2010, the Director-General has notified environmental assessment requirements under section 75F (3) of the Act for approval to carry out mining operations in the mining area, or

(b) the period ending on 16 December 2010, in any other case.



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