Complying Development Certificate SESSION 1 / 8. Legislation. Version 4 October 2015 Association of Accredited Certifiers

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1 Complying Development Certificate SESSION 1 / 8 Legislation Version 4 October 2015 Association of Accredited Certifiers

2 Association of Accredited Certifiers Copyright and Moral Rights Copyright All rights are reserved. The copyright in this website and the material included in the Association of Accredited Certifiers webpages (including without limitation the text, artwork, photographs, images, audio material, video material and audio-visual material on this website) is owned by the Association of Accredited Certifiers. The computer code and computer application delivering the material is owned by Pointsbuild Pty Ltd. No part of this material may be reproduced, stored in or on a retrieval system, or transmitted in any means (electronic, mechanical, photocopying, recording or otherwise), without the prior written permission of the Association of Accredited Certifiers. Moral Rights Tim Stenning asserts their right to be identified as the author of this topic in accordance with the Copyright Amendment (Moral Rights) Act The author also asserts their right to not have the work treated in a derogatory manner. Version 4 October 2015 Association of Accredited Certifiers

3 TABLE OF CONTENTS Acts and Regulations... 1 Environmental Planning Instruments... 2 Determining What EPIs Apply... 3 Inconsistency between Environmental Planning Instruments... 4 Drafting of EPIs... 5 Zoning... 5 Equivalent Zones... 5 Classifying Development... 6 Characterising Development... 7 Development for a Purpose... 8 Example 1 Supermarket... 9 Ancillary Development Example 2 Industrial Premises Principal Purpose Definitions LEPs and The Standard Instrument Land use terms Land use groups Lawful Use Existing Use Overlays Information Requirements Schedule Validity of Complying Development Certificates Conditions Developer Contributions Other Legislation... 20

4 Acts and Regulations Legislation Planning and Development within New South Wales is carried out under the Environmental Planning and Assessment Act, 1979 and the Environmental Planning & Assessment Regulation An ACT is legislation passed by the Parliament. Acts, (not including Schedules to Acts), can only be amended by another Act of Parliament. Acts set out the broad legal/policy principles. Regulations are commonly known as "subsidiary legislation" and require publishing in the Government Gazette to become legal. These are the guidelines that dictate how the provisions of the Act are applied. They may also contain pro forma official forms that are required under the Act. Regulations and schedules to Acts, can only be amended by a notice published in the Government Gazette. Generally, if it s the legal/statement of Law that you want, then it is the Act that is required. If it is implementation detail, then the Regulation is required. Environmental Planning and Assessment Act, 1979 The Environmental Planning and Assessment Act, 1979 (the Act) comprises of the following parts: Part 3 Environmental Planning Instruments Part 4 Development Assessment Part 4A Certification of Development Part 5 Environmental Assessment Part 6 Implementation & Enforcement A Complying Development Certificate is issued under Part 4 of the Act. The Environmental Planning and Assessment Regulation 2000 is made under the Act. Page 1

5 Environmental Planning Instruments Environmental Planning Instruments (EPIs), are legal documents that regulate land use and development and comprise of: State Environmental Planning Policies; Local Environmental Plans. The plan-making system in NSW, including the preparation of an EPI, is set out in Part 3 of the Environmental Planning and Assessment Act, The full text of all EPIs is available online at NSW Legislation website. In addition, most councils make their LEPs available on their websites. Page 2

6 Determining What EPIs Apply A site can be covered by more than one EPI. To find all the EPIs that apply to a site, you can either work it out yourself (by looking at all the EPIs), or obtain a certificate from the local council which tells you which EPIs apply. These certificates are referred to as Planning Certificates under S.149 of the Environmental Planning and Assessment Act, Prior to starting complying development the applicant must find out what planning controls apply to the land and to the type of development. A section 149 Planning Certificate from council will outline what planning controls apply and whether particular parts of the policy can be used for development on the land. Individuals can request a section 149(2) certificate (a planning certificate) from council, which will establish whether or not complying development is permissible on the subject lot. The planning certificate is not compulsory but it is recommended to provide a greater level of certainty. It is important to be aware of the limitations of the section 149(2) certificate, for example; while it will indicate whether the lot is the subject of any exclusions, it does not speak to other requirements (e.g. that the development would be permissible with consent). Recent changes introduced in December 2013 to S.149 Planning Certificates include: The SEPP has been amended to allow exempt and complying development, to take place on lots affected by certain zoning and other land based restrictions, as long as the development is not on part of the lot affected by the exemption. For example, where only a portion of a lot is included in a foreshore area, or where a heritage item is defined to be a specific part of a lot, exempt and complying development can still be undertaken on the parts of the site not affected by these and other types of exclusions. As a result, the Regulation now requires councils to identify whether a lot is affected by a land exclusion, and if so the extent to which the lot is affected. If a council does not have sufficient information to ascertain the extent of the land based exclusion, a statement to this effect must be included in the planning certificate. The SEPP includes new complying development codes and as a result, the Regulation requires planning certificates to include information on these codes. Page 3

7 Inconsistency between Environmental Planning Instruments The general principle with EPI s is that a State Environmental Planning Policy would prevail over a Local Environmental Plan made before, or after that State Environmental Planning Policy. This is because State Environmental Planning is made by the State Government, while a Local Environmental Plan is made by a local government. Generally, the most recent EPIs prevail over earlier ones, unless one of the instruments makes it clear that this is not the intention. This is covered under S.36 of the EP&A Act, 1979 as follows: 36 Inconsistency between instruments (1) In the event of an inconsistency between environmental planning instruments and unless otherwise provided: (a) There is a general presumption that a State environmental planning policy prevails over a local environmental plan or other instrument made before or after that State environmental planning policy; and (b) Repealed (c) The general presumptions of the law as to when an Act prevails over another Act apply to when one kind of environmental planning instrument prevails over another environmental planning instrument of the same kind. (2) Repealed (3) Repealed (4) There is nothing in this section that prevents an environmental planning instrument from being expressly amended by a later environmental planning instrument of the same, or a different kind to provide the way in which an inconsistency between them is to be resolved. The diagram represents the hierarchy between legislation including, Acts and Regulations, Environmental Planning Instruments and non-statutory documents, e.g. Development Control Plans. Page 4

8 Drafting of EPIs NSW Parliamentary Counsel s Office, drafts SEPPs and LEPs; Local councils do not draft LEPs. The drafting is commissioned by the Minister and is in practice done by the NSW Parliamentary Counsel s Office in consultation with the planning authority, under the direction of the Director-General. Once the LEP has been drafted, it is then given to the Planning Minister. Zoning Zoning is the division of land into categories. These categories determine what sorts of activities and development are allowed in the area that they cover. A Local Environmental Plan, also known as an LEP, divides the Local Government Area into zones, which specify what kind of development is allowed on a particular parcel of land. In 2006, the NSW Government changed the law so that all LEPs had to be standardised to conform to a template called the Standard Instrument Principal Local Environmental Plan (the Standard Instrument). Before then, LEPs in different Local Government Areas differed substantially in terminology, how zones were classified, and what was allowed in each zone. These changes mean that any amendments to LEPs or new LEPs developed after 1 July 2009 must use the standard zones and terminology set out by the Department of Planning in the Standard Instrument. The Standard Instrument LEP contains 35 different zoning categories. These zones are grouped under eight broad headings including: Rural zones; Residential zones; Business zones; Industrial zones; Special Purpose zones; Recreation zones; Environment Protection zones; and Waterway zones. Page 5

9 Immediately prior to introduction of the Standard Instrument, there were approximately 5,500 local planning instruments across the State; containing some 3,100 different land use zones and 1,700 land use definitions. The diagram shows the status of the Standard Instrument LEP program as of 11th June Equivalent Zones Complying Development relies on the land use zones established under the Standard Instrument. Where the Council has not made an LEP in accordance with the Standard Instrument, the Codes SEPP provides that complying development can be carried out on an equivalent zone. Most Councils have now adopted the Standard Instrument LEP, therefore the use of equivalent zones is becoming increasingly uncommon. Clause 1.6 of the Codes SEPP provides guidance to certifiers on how to determine the land use zone where a Council is yet to adopt the standard instrument LEP. 1.6 Interpretation references to land use zones (1B) Despite subclause (1) (b), in relation to land: (a) to which an environmental planning instrument that is not made as provided by section 33A (2) of the Act applies, and (b) to which a draft environmental planning instrument that complies with that section and has been the subject of community consultation also applies, a reference in this Policy to a lot or land in a named land use zone is a reference to a lot or land specified in such a zone in the last such draft environmental planning instrument that was the subject of such community consultation. (1C) In subclause (1B), community consultation means community consultation under section 57 of the Act or public exhibition under section 66 of the Act (as continued on by clause 12 of the Environmental). Where a council has exhibited its draft Standard Instrument LEP, the zone that has been exhibited will be the equivalent zone. At the time of preparing these course notes only a handful of councils were yet to adopt the Standard Instrument LEP. However, all of those Councils had exhibited their new LEPs. Therefore, the equivalent land use tables are no longer required and certifiers should refer to the Draft Standard Instrument LEP. Page 6

10 Classifying Development All proposed development will fall into one of the three categories. Under the Standard Instrument, this is contained in the Land Use Table which sets out the objectives of each zone and the types of development. Development that needs consent - development must not be carried out unless a consent has been obtained and is carried out in accordance with the consent and the Environmental Planning Instrument. Development that does not need consent - development that may be carried out in accordance with the relevant Environmental Planning Instrument. Development that is prohibited or cannot be carried out on land with or without development consent. All Complying Development needs to fall within the category of development that needs consent. A reference to the type of building or thing in the Land Use Table is to be interpreted as a reference to the development for the purposes of that type of building or thing. For example, the listing of dwelling houses under the heading Permitted with consent in Zone RU1 Primary Production, means that the development for the purposes of a dwelling house is permitted with consent in that zone. All proposed development will generally fall into one of the three categories. Under the Standard Instrument this is contained in the Land Use Table which sets out the objectives of each zone and the types of development. Development that needs consent; development must not be carried out unless a consent has been obtained and is force, and is carried out in accordance with the consent and the Environmental Planning Instrument. Development that does not need consent; development that may be carried out in accordance with the relevant Environmental Planning Instrument. Development that is prohibited or cannot be carried out on land with or without development consent. Characterising Development Planning law requires the identification of the use of land. The activity carried out on the land will inform as to its use. Determining the current use of the premises requires the certifying authority to determine the nature of the activity at a level of generality that covers activities carried out at that premises. Page 7

11 For planning purposes, the designation of office premises is probably specific enough. Planners are not concerned about the particular profession of the occupant of the office. The case is not so simple for retail premises. The use is about the type of shop. For instance, a butcher shop is considerably different to a newsagency. Similarly for industry, which covers a wide variety of activities, the proper designation refers to the type of industry, for example, pottery making or spray painting. In these cases; noise, the pattern of the movement of people, and traffic and parking issues, are different and give rise to very different planning considerations that must be assessed. Other potential considerations include rubbish removal and cooking smells. Characterising Development is therefore, particularly important with regard to a Change of Use under the Commercial and Industrial Codes: For this reason, the following terms are discussed further: Development for a purpose; Ancillary uses; Principal purpose. Development for a Purpose Development is considered to be for a particular purpose if that purpose is the dominant purpose of the development. This purpose is the reason for which the development is to be undertaken or the end to which the development serves. To determine whether a development is (or will be) for a particular purpose, an enquiry into how that purpose will be achieved by the development is necessary. The assessment will vary depending on the facts of each case. The Department of Planning & Environment, provide the following example of a Supermarket. Page 8

12 Example 1 - Supermarket In the Standard Instrument Dictionary, shop means: premises that sell merchandise such as groceries, personal care products, clothing, music, homewares, stationery, electrical goods or the like or that hire any such merchandise, and includes a neighbourhood shop, but does not include food and drink premises or restricted premises. Note: Shops are a type of retail premises see the definition of that term in this Dictionary. In the case of development for the purpose of the shop such as a supermarket, the development could involve the construction of: The building in which the supermarket and its associated stock room and loading dock is located. A basement or adjoining car park for customers who wish to shop at the supermarket. Driveways providing vehicular access from the public road to the car park and passageways, travelators or pedestrian ramps providing pedestrian access between the public road, the car park and a supermarket; and A landscaped, supermarket forecourt area that provides passive recreation and access for Customers. All of the above development can be regarded as being for the one dominant purpose of the shop. The integral relationship between the various components means it is not appropriate to characterise each as being for the purpose of a car park, or roads, or recreational area. The fact there are different components or parts of varying nature comprising the development, is not necessarily of importance. Obviously, the only part of the proposed development specifically intended for use as a supermarket, is that part of the building that incorporates the supermarket. The other parts of the development such as a car park, driveways, access ways, and landscaped forecourt, serve the purpose of enabling the supermarket to function on the land. Page 9

13 Ancillary Development An ancillary use is a use that is subordinate or subservient to the dominant purpose. The concept is important when a development involves multiple components on the same land. To put it simply: If a component serves the dominant purpose, it is ancillary to that dominant purpose; If a component serves its purpose, it is not a component of the dominant purpose but an independent use on the same land. It is the dominant use in its right. In such circumstances, the development could be described as a mixed-use development. In the Standard Instrument Dictionary this is described as: Mixed use development means a building or place comprising 2 or more different land uses. The Department of Planning & Environment, provide the example of an Industrial premises. Example 2 Industrial Premises In the Standard Instrument Dictionary: General industry means a building or place (other than a heavy industry or light industry) that is used to carry out an industrial activity. In the case of development for the purpose of general industry such as a factory, the development could involve the construction of: The building in which the factory and its associated storehouse and loading dock is located. An adjoining car park for employees. Driveways providing vehicular access from the public road to the car park and passageways. Fencing around the premises for security and safety; and A caretaker s residence for a full-time caretaker to manage and maintain the premises. Page 10

14 The integral relationship between the various components means it is appropriate, to characterise the entire development as being for the dominant purpose of general industry, including the caretaker s residence, the built form of which could be considered to be a different, residential use of land. However, since the residence exists to serve the dominant purpose, it is properly characterised as an ancillary use and is, therefore, development for purposes of general industry. However, if the proposed residence is not for a full-time caretaker at all but is instead a house that could be rented out to anyone, fenced off away from the industrial premises with separate access and driveway from a road; it should be characterised as development for the purposes of a dwelling house or residential accommodation. The proper characterisation of the residence will depend on the facts. The characterisation of the residence has the following implications: If the entire development is for the purpose of general industry, general industry must be; - permitted with consent on the land for consent to be granted. If the development is mixed use, for the purpose of general industry and as well as a dwelling house, both general industry and dwelling house must be permitted with consent on the land for consent to be granted. Principal Purpose There are eight land use terms in the Standard Instrument Dictionary that use the term principal purpose as part of their definition. For example, in the Standard Instrument Dictionary: hardware and building supplies means a building or place the principal purpose of which is the sale or hire of goods or materials such as household fixtures, timber, tools, paint, wallpaper, plumbing supplies and the like, that are used in the construction and maintenance of buildings and adjacent outdoor areas. The use of the term principal purpose in such a context adds flexibility to what may be considered to be for the purpose of hardware and building supplies. A building or place that sells goods or materials relating to the construction and maintenance of buildings and related outdoor areas and also sells other goods or materials or provides related or unrelated services may still fall within the definition of hardware and building supplies, but only if those other goods, materials or services do not constitute a major component of the development. The definition makes it clear that even if these other goods or materials are sold or services provided, the principal purpose of the building or place must remain the sale or hire of goods or materials such as household fixtures, timber, tools, paint, wallpaper, plumbing supplies and the like, that are used in the construction and maintenance of buildings and adjacent outdoor areas. Page 11

15 Definitions Environmental Planning Instruments include definitions of either the land uses or activities that may be controlled, referred to as land use terms as well as general terms which describe technical, administrative or other terms that are important to the interpretation of EPI s. LEPs and The Standard Instrument The Standard Instrument for preparing local environmental plans (LEPs) includes a Dictionary of standard definitions relating to land uses and other terms relevant to the interpretation of LEPs. The Dictionary is set out in alphabetical order. This means that all LEPs across NSW will soon all use the same planning language, including the same definitions for developments such as business premises, industry and shops. The standard definitions included in the Standard Instrument are mandatory, however definitions not used in council s LEP need not be reproduced in it. Ordinarily, councils are not be able to alter the standard definitions or directly add their own definitions to the Dictionary. However councils may suggest new terms to be included in the standard Dictionary for all councils to use. In some circumstances councils might also be able to define terms for the purposes of a local provision. Land use terms Approximately half of the standard definitions are land use terms or activities, e.g. restaurant, hospital, horticulture and mining. These are the terms used to describe development that is permitted or prohibited in the different zones used by councils. Land use groups The standard Dictionary includes a number of distinct groups of land use terms that are broadly related by their definitions. These include: Agriculture; Air transport facility; Commercial premises; Educational establishment; Health services facility; Page 12

16 Heavy industrial storage premises; Industry; Residential accommodation; Rural industry; Sewerage system; Signage; Storage premises; Tourist and visitor accommodation; Waste or resource management facility; Water supply system. These groups are headed by a group term that covers a wide range of related land uses, often including several other defined land use terms. Group terms allow LEP provisions to easily refer to a number of land uses without needing to list them individually. Some defined land uses need to be read in the context of the group term to understand its full meaning. For example, a market falls under the group retail premises as it specifically refers to that term in its definition: Market means retail premises comprising an open-air area or an existing building used for the purpose of selling, exposing or offering goods, merchandise or materials for sale by independent stall holders, and includes temporary structures and existing permanent structures used for that purpose on an intermittent or occasional basis. Retail premises are in turn defined as: Retail premises means a building or place used for the purpose of selling items by retail, or for hiring or displaying items for the purpose of selling them by retail or hiring them out, whether the items are goods or materials (or whether also sold by wholesale). Therefore, to be defined as a market, the land must satisfy the criteria in both definitions. This ensures that there is consistency in definitions relating to retail land uses, and avoids the need for repetition in each of the defined retail terms. Page 13

17 This is further explained by the diagram: Each group term definition lists the uses it covers (and in some instances, uses it does not cover). For example: industry means any of the following: (a) general industry, (b) heavy industry, (c) light industry, But does not include: (a) rural industry, or (b) extractive industry, or (c) mining. A further example of how land use terms fit within group terms is shown in the diagram for a Commercial Premises. Page 14

18 Lawful Use For a proposed development to be lawful, the premises must be subject to an existing development consent. In this circumstance, any existing consent that applies to the premises would need to be considered to determine whether there was a current lawful use. The Department of Planning and Environment advises to obtain a hard copy of that development consent. In the event that the use predates the first planning scheme or EPI within a local government area, the use will usually be deemed lawful, however this should be confirmed with the relevant consent authority. The Department of Planning and Environment also suggests that you may want to seek the advice of a properly qualified person to confirm whether or not the current land use is lawful. Existing Use A key criteria to Complying Development under the Commercial and Industrial Code, is that the the current use must not be an existing use as defined in section 106 of the EP&A Act So what is an Existing Use? This is defined under S.106 of the EP&A Act, 1979, as follows: 106 Definition of existing use In this Division, existing use means: (a) The use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4 of this Part, have the effect of prohibiting that use; and (b) The use of a building, work or land: (i) for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and (ii) that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse. Fundamentally, Existing uses as defined under S.106, are created when a new EPI completely prohibits certain development, but land is currently being used for a lawful purpose. Page 15

19 A common example is: A service station located within a residential or commercial area. The service station is a lawful use has it has previously been granted consent. A new LEP re-zones the site to a residential zone (e.g. R1 General Residential) given the predominant character of the area. A service station is prohibited in a R1 zone, however the subject service station enjoys Existing Use rights afforded under the Act. Therefore, it is important to determine whether the existing use is permitted with consent within the prescribed zone for the site. This will indicate whether the site relies on Existing Use rights and whether the development can be Complying Development. One reason Complying Development is not permitted when a site relies on Existing Use rights and therefore, development consent under Part 4 of the Act is required, is due to the concept of abandonment. A rigorous assessment that can be difficult to quantify is required to determine if an existing use has been abandoned and therefore, it must be subject to a more rigorous assessment process under Part 4 of the Act. Abandonment is defined as: An existing use right is lost forever if it is abandoned. The existing use is deemed abandoned if it ceases for a continuous period of 12 months. Continuation of the existing use, even in a minor way, is sufficient. Generally the onus of proof of abandonment rest with the Council. Overlays Planning overlays are used where a number of planning responses are required to manage multiple values on the one piece of land. For example a 'water supply area' overlay could identify land within a water supply catchment on a map (which may include land in several different zones), and set out detailed additional considerations or standards that must be applied before consent can be granted to a development application. Some overlays constitute environmental overlays that recognise that land is, for example, in a water supply catchment, or contains a wildlife corridor. Others recognise that the land is naturally constrained or subject to a particular hazard, for example, flood prone land or land in a high bush fire risk area. Overlay provisions can apply to land that is in several different zones. Any overlay provisions will apply in addition to the objectives and land use table for the zone. The provisions can set out extra considerations that a decision-maker must take into account before approving development in that zone. However, the overlay cannot alter the permissible or prohibited uses that are set out in the Standard Instrument and must be consistent with those uses. An overlay comprising of an environmentally sensitive area can specifically exclude Complying Development under clause 3.3 of a Standard Instrument LEP, where Council has included an additional provision, such as an area subject to a Scenic Protection Area Map or Biodiversity. Page 16

20 Information Requirements Schedule 1 The CDC application must be submitted with additional details to ensure the certifying authority has sufficient information to assess whether the proposal complies with the development standards. This information is specified in Schedule 1 of the Environmental Planning & Assessment Regulation Clause 126 of the Regulations sets out how an application for Complying Development Certificate must be made as provided in the slide: 126 How must an application for a complying development certificate be made? (cf clause 75A of EP&A Regulation 1994) (1) An application for a complying development certificate: (a) must contain the information, and be accompanied by the documents, specified in Part 2 of Schedule 1; and (b) if the certifying authority so requires, must be in the form approved by that authority; and (c) must be delivered by hand, sent by post or transmitted electronically to the principal office of the council or the accredited certifier, but may not be sent by facsimile transmission. (2) Immediately after it receives an application for a complying development certificate, the council or accredited certifier must endorse the application with the date of its receipt. (3) In determining whether an alteration, enlargement or extension of a BASIX affected building is BASIX affected development, the certifying authority must make its determination by reference to a genuine estimate of the construction costs of the work, including any part of the work that is BASIX excluded development. The estimate must, unless the certifying authority is satisfied that the estimated cost indicated in the application for a complying development certificate is neither genuine nor accurate, be the estimate so indicated. (4) A single application for a complying development certificate may be made for development comprising the concurrent erection of new single storey or two storey dwelling houses if each is to be erected on existing adjoining lots. The Council or accredited certifier may require additional information as set out clause 127 of the Regulations. Page 17

21 127 Council or accredited certifier may require additional information (cf clause 76 of EP&A Regulation 1994) (1) A council or accredited certifier may require the applicant for a complying development certificate to give the council or accredited certifier any additional information concerning the proposed development that is essential to the council s or accredited certifier s proper consideration of the application. (1A) A council or an accredited certifier may require that the additional information under subclause (1) be obtained by or on behalf of the applicant from a properly qualified person. (2) Nothing in this clause affects the council s or accredited certifier s duty to determine an application for a complying development certificate. Page 18

22 Validity of Complying Development Certificates The validity of Complying Development Certificates can only be questioned when commenced in Court by any person at any time before the expiration of 3 months from the date on which public notice as so given. This is set out under S.101 of the Act as follows: 101 Validity of development consents and complying development certificates If public notice of the granting of a consent or a complying development certificate is given in accordance with the regulations by a consent authority or an accredited certifier, the validity of the consent or certificate cannot be questioned in any legal proceedings except those commenced in the Court by any person at any time before the expiration of 3 months from the date on which public notice was so given. It is therefore, good practice for Councils and Accredited Certifiers to take out a newspaper advertisement in a local newspaper as prescribed under clause 137 of the Regulations as follows: 137 What are the public notification procedures for the purposes of section 101 of the Act? (cf clause 77B of EP&A Regulation 1994) (1) The determination of an application for a complying development certificate is publicly notified for the purposes of section 101 of the Act: (a) if public notice in a local newspaper is given by the council or an accredited certifier; and (b) if the notice describes the land and the development the subject of the complying development certificate; and (c) if the notice contains a statement that the determination of the application for a complying development certificate is available for public inspection, free of charge, during ordinary office hours at the council s offices. (2) If the public notification is given by an accredited certifier, the accredited certifier must send a copy of the page of the newspaper in which notice of the complying certificate was published to the council within 7 days after the notice is published. (3) Nothing in this clause confers a right or entitlement to inspect, make copies of or take extracts from so much of a document that, because of section 12 (1A) of the Local Government Act 1993, a person does not have the right to inspect. This would remove any ability for the validity of a Complying Development Certificate to be challenged after the 3 month period from the date on which the public notice was given. Page 19

23 Conditions Complying development is approved subject to conditions specified in the CDC issued by the certifying authority. Recent changes to the conditions of approval for complying development under the Codes SEPP have been strengthened to minimise impacts on the environment and to prevent damage to adjoining areas during construction. Conditions applying under each complying development code have been reordered, standardised and are now located in separate schedules at the end of the SEPP. The Department of Planning and Environment will shortly release Information Sheet 1.5 which includes additional information on conditions of approval. Developer Contributions Contributions under s94 or 94A of the EPA Act have always been payable in respect of complying development which is of a type in respect of which a contributions plan requires contributions (e.g. a Secondary Dwelling under the Affordable Housing SEPP). Recent amendments to the Regulations require a condition to be imposed on a complying development certificate requiring payment of a s94 or 94A contribution prior to the commencement of work, despite anything to the contrary in the relevant contributions plan. The requirements in the Regulation regarding the making of contributions plans are also amended to require new contributions to reflect this change in timing. Other Legislation In addition to the Environmental Planning and Assessment Act, 1979 and Environmental Planning and Assessment Regulations 2000, which forms the principle planning legislation in NSW, the following additional legislation could be relevant to the regulation of complying development: The Local Government Act 1993; The Food Act 2003; The Public Health Act 1991; The Building Code of Australia (BCA); and Relevant Australian Standards (AS). Page 20

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