Division 4.3 changed — commencement status not recorded

Division 4.3 changed — commencement status not recorded | NSW Amendments Register

Earlier · as at November 1st, 2025

Later · as at December 15th, 2025

Earlier · as at November 1st, 2025

Part 4 > Division 4.3

Division 4.3 Development that needs consent (except complying development)

Development that needs consent (except complying development) div 4.3, hdg (previously pt 4, Div 2, heading): Renumbered 2017 No 60, Sch 4.2 [3]. Am 2017 No 60, Sch 4.2 [4]. 4.9 Application of Division (cf previous s 77) This Division— (a) applies to development that may not be carried out except with development consent, but (b) does not apply to complying development. Note. Under this Part, the procedures by which development consent is obtained differ according to whether the development— (a) is or is not State significant development, and (b) is or is not designated development (which it may be declared to be by an environmental planning instrument or the regulations), and (c) is or is not integrated development (see Division 4.8). ss 4.9–4.11 (previously ss 77–78): Renumbered 2017 No 60, Sch 4.2 [1]. 4.10 Designated development (cf previous s 77A) (1) Designated development is development that is declared to be designated development by an environmental planning instrument or the regulations. (2) Designated development does not include State significant development despite any such declaration. ss 4.9–4.11 (previously ss 77–78): Renumbered 2017 No 60, Sch 4.2 [1]. 4.11 The development consent process—the main steps (cf previous s 78) The main steps in the development consent process are set out in sections 4.12–4.18 and in the regulations made for the purposes of this Part. ss 4.9–4.11 (previously ss 77–78): Renumbered 2017 No 60, Sch 4.2 [1]. 4.12 Application (cf previous s 78A) (1) A person may, subject to the regulations, apply to a consent authority for consent to carry out development. Note. Section 380AA of the Mining Act 1992 provides that an application for development consent to mine for coal can only be made by or with the consent of the holder of an authority under that Act in respect of coal and the land concerned. (2) A single application may be made in respect of one or more of the types of development referred to in paragraphs (a)–(f) of the definition of development in section 1.5(1). (3) If the consent authority is a council, a person (other than the Crown or a person acting on behalf of the Crown) may, in the same development application, apply for development consent and approval for anything that requires approval under the following provisions of the Table to section 68 of the Local Government Act 1993 , namely— paragraph 1 of Part A paragraph 1–6 of Part B paragraph 1–5 of Part C paragraph 1 of Part E paragraph 1–5 or 10 of Part F. (4) In determining a development application to which subsection (3) applies, the council may apply any of the provisions of or under the Local Government Act 1993 that it could apply if the development application were an application under that Act for the relevant approval. In particular, if development consent is granted, the council may impose a condition that is authorised under that Act to be imposed as a condition of an approval. (5) If development consent is granted to a development application to which subsection (3) applies, the council is taken to have granted the relevant approval under the Local Government Act 1993 that authorises the activity, but that Act has no application to the approval so taken to have been granted. (6) In granting development consent to a development application to which subsection (3) applies, the council may, without limiting any other condition it may impose, impose, in relation to the approval taken to have been granted under the Local Government Act 1993 , either or both of the following conditions— (a) a condition that the approval is granted only to the applicant and does not attach to or run with the land to which it applies, (b) a condition that the approval is granted for a specified time. (6A) A reference to a council in subsections (3)–(6) includes a reference to a Sydney district or regional planning panel, or a local planning panel or delegate, that has the function of determining the development application. (7) A development application cannot be made in respect of land that is, or is part of, a wilderness area (within the meaning of the Wilderness Act 1987 ) unless any consent to the development required under that Act has been obtained. (8) A development application for State significant development or designated development is to be accompanied by an environmental impact statement prepared by or on behalf of the applicant in the form prescribed by the regulations. (8A) (9) The regulations may specify other things that are required to be submitted with a development application. s 4.12 (previously s 78A): Renumbered 2017 No 60, Sch 4.2 [1]. Am 2018 No 25, Sch 4 [16]. 4.13 ~~Consultation~~ and concurrence (cf previous s 79B) (1) General If, by an environmental planning instrument, the consent authority, before determining the development application, is required to consult with or to obtain the concurrence of a person, the consent authority must, in accordance with the environmental planning instrument and the regulations, consult with or obtain the concurrence of the person, unless the consent authority determines to refuse to grant development consent. Note. See also section 48 of the Dams Safety Act 2015 which requires the consent authority, before granting development consent for carrying out mining operations in a notification area declared under that section, to refer the application to Dams Safety NSW and to take into consideration any matters raised by Dams Safety NSW. (2) However, if, by an environmental planning instrument, the Minister, before determining a development application, is required to obtain the concurrence of a person, the Minister is required only to consult with the person. (2A) State significant development—exclusion This section does not apply to State significant development unless the requirement of an environmental planning instrument for consultation or concurrence specifies that it applies to State significant development. (3)–(7) (8) Granting or refusal of concurrence A person whose concurrence to development is required may— (a) grant concurrence to the development, either unconditionally or subject to conditions, or (b) refuse concurrence to the development. In deciding whether to grant concurrence, the person must take into consideration only the matters stated pursuant to section 3.18(3) and applicable to the development. (8A), (8B) (9) Giving effect to concurrence A consent authority that grants consent to the carrying out of development for which a concurrence has been granted must grant the consent subject to any conditions of the concurrence. This does not affect the right of the consent authority to impose conditions under section 4.17 not inconsistent with the conditions of the concurrence or to refuse consent. (10) Avoidance of consents subject to concurrence If, by an environmental planning instrument, a development application may not be determined by the granting of consent without the concurrence of a specified person, a consent granted— (a) without that concurrence, or (b) not subject to any conditions of the concurrence, is, subject to sections 4.60–4.62, voidable. (11) However, if the specified person fails to inform the consent authority of the decision concerning concurrence within the time allowed for doing so, the consent authority may determine the development application without the concurrence of the specified person and a development consent so granted is not voidable on that ground. (12) Nothing in this section affects any liability of a consent authority in respect of a consent granted as referred to in subsection (10)(a) or (b). s 4.13 (previously s 79B): Renumbered 2017 No 60, Sch 4.2 [1]. Am 2015 No 26, Sch 3.1. 4.14 Consultation and development consent—certain bush fire prone land (cf previous s 79BA) (1) Development consent cannot be granted for the carrying out of development for any purpose (other than a subdivision of land that could lawfully be used for residential or rural residential purposes or development for a special fire protection purpose) on bush fire prone land (being land for the time being recorded as bush fire prone land on a relevant map certified under section 10.3(2)) unless the consent authority— (a) is satisfied that the development conforms to the specifications and requirements of the version (as prescribed by the regulations) of the document entitled Planning for Bush Fire Protection prepared by the NSW Rural Fire Service in co-operation with the Department (or, if another document is prescribed by the regulations for the purposes of this paragraph, that document) that are relevant to the development ( the relevant specifications and requirements ), or (b) has been provided with a certificate by a person who is recognised by the NSW Rural Fire Service as a qualified consultant in bush fire risk assessment stating that the development conforms to the relevant specifications and requirements. (1A) If the consent authority is satisfied that the development does not conform to the relevant specifications and requirements, the consent authority may, despite subsection (1), grant consent to the carrying out of the development but only if it has consulted with the Commissioner of the NSW Rural Fire Service concerning measures to be taken with respect to the development to protect persons, property and the environment from danger that may arise from a bush fire. (1B) This section does not apply to State significant development. (1C) The regulations may exclude development from the application of this section subject to compliance with any requirements of the regulations. The regulations may (without limiting the requirements that may be made)— (a) require the issue of a certificate by the Commissioner of the NSW Rural Fire Service or other qualified person in relation to the bush fire risk of the land concerned, and (b) authorise the payment of a fee for the issue of any such certificate. (2) In this section— special fire protection purpose has the same meaning as it has in section 100B of the Rural Fires Act 1997 . s 4.14 (previously s 79BA): Renumbered 2017 No 60, Sch 4.2 [1]. 4.15 Evaluation (cf previous s 79C) (1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application— (a) the provisions of— (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), (v) that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. (2) Compliance with non-discretionary development standards—development other than complying development If an environmental planning instrument or a regulation contains non-discretionary development standards and development, not being complying development, the subject of a development application complies with those standards, the consent authority— (a) is not entitled to take those standards into further consideration in determining the development application, and (b) must not refuse the application on the ground that the development does not comply with those standards, and (c) must not impose a condition of consent that has the same, or substantially the same, effect as those standards but is more onerous than those standards, and the discretion of the consent authority under this section and section 4.16 is limited accordingly. (3) If an environmental planning instrument or a regulation contains non-discretionary development standards and development the subject of a development application does not comply with those standards— (a) subsection (2) does not apply and the discretion of the consent authority under this section and section 4.16 is not limited as referred to in that subsection, and (b) a provision of an environmental planning instrument that allows flexibility in the application of a development standard may be applied to the non-discretionary development standard. Note. The application of non-discretionary development standards to complying development is dealt with in section 4.28(3) and (4). (3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority— (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application. In this subsection, standards include performance criteria. (4) Consent where an accreditation is in force A consent authority must not refuse to grant consent to development on the ground that any building product or system relating to the development does not comply with a requirement of the Building Code of Australia if the building product or system is accredited in respect of that requirement in accordance with the regulations. (5) A consent authority and an employee of a consent authority do not incur any liability as a consequence of acting in accordance with subsection (4). (6) Definitions In this section— (a) reference to development extends to include a reference to the building, work, use or land proposed to be erected, carried out, undertaken or subdivided, respectively, pursuant to the grant of consent to a development application, and (b) non-discretionary development standards means development standards that are identified in an environmental planning instrument or a regulation as non-discretionary development standards. s 4.15 (previously s 79C): Renumbered 2017 No 60, Sch 4.2 [1]. Am 2016 No 20, Sch 4.1 [1] [2]. Am 2018 No 25, Sch 4 [5] [17]. 4.16 Determination (cf previous s 80) (1) General A consent authority is to determine a development application by— (a) granting consent to the application, either unconditionally or subject to conditions, or (b) refusing consent to the application. (2) Despite subsection (1), the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development. (3) “Deferred commencement” consent A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations, as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition. (4) Total or partial consent A development consent may be granted— (a) for the development for which the consent is sought, or (b) for that development, except for a specified part or aspect of that development, or (c) for a specified part or aspect of that development. (5) The consent authority is not required to refuse consent to any specified part or aspect of development for which development consent is not initially granted under subsection (4), but development consent may subsequently be granted for that part or aspect of the development. Note. See also Division 4.4 for special procedures concerning concept development applications. (6) Restrictions on determination of development applications involving Independent Planning Commission If a consent authority (other than the Minister) has received notice that the Minister has requested that a review (with or without a public hearing) be conducted by the Independent Planning Commission in relation to all or any part of the development the subject of a development application, the consent authority must not determine the development application until— (a) the review has been conducted, and (b) the consent authority has considered the findings and recommendations of the Independent Planning Commission and any comments made by the Minister that accompanied those findings and recommendations when they were forwarded to the consent authority. (7) If the Minister has requested that a review (with or without a public hearing) be conducted by the Independent Planning Commission in relation to all or any part of the development the subject of a development application for which the Minister is the consent authority, the Minister must not determine the development application until— (a) the review has been conducted, and (b) the Minister has considered the findings and recommendations of the Independent Planning Commission. (8) (9) Restrictions on determination of development applications for designated development A consent authority must not determine a development application for designated development— (a) until after the submission period (within the meaning of Schedule 1) has expired, or (b) if a submission is made with respect to the application within the submission period, until after 21 days following the date on which a copy of the submission is forwarded to the Planning Secretary have expired. (10) Subsection (9)(b) does not apply— (a) to a consent authority being the Minister or the Planning Secretary, or (b) if the Planning Secretary has waived the requirement that submissions be forwarded to the Planning Secretary for a specified development application or for a specified class of development applications. (10A) (11) Other restrictions on determination of development applications The regulations may specify other matters of a procedural nature that are to be complied with before a development application may be determined. (12) Effect of issuing construction certificate If a consent authority or a registered certifier issues a construction certificate, the construction certificate and any approved plans and specifications issued with respect to that construction certificate, together with any variations to the construction certificate or plans and specifications that are effected in accordance with this Act or the regulations, are taken to form part of the relevant development consent (other than for the purposes of section 4.55). (13), (14) s 4.16 (previously s 80): Renumbered 2017 No 60, Sch 4.2 [1]. Am 2018 No 25, Sch 4 [5] [18]; 2018 No 63, Sch 3.3[4]. 4.17 Imposition of conditions (cf previous s 80A) (1) Conditions—generally A condition of development consent may be imposed if— (a) it relates to any matter referred to in section 4.15(1) of relevance to the development the subject of the consent, or (b) it requires the modification or surrender of a consent granted under this Act or a right conferred by Division 4.11 in relation to the land to which the development application relates, or (c) it requires the modification or cessation of development (including the removal of buildings and works used in connection with that development) carried out on land (whether or not being land to which the development application relates), or (d) it limits the period during which development may be carried out in accordance with the consent so granted, or (e) it requires the removal of buildings and works (or any part of them) at the expiration of the period referred to in paragraph (d), or (f) it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 4.15(1) applicable to the development the subject of the consent, or (g) it modifies details of the development the subject of the development application, or (h) it is authorised to be imposed under the following— (i) section 4.16(3) or (5), (ii) subsections (5)–(9) of this section, (iii) section 7.11 or 7.12, (iv) Division 7.1, Subdivision 4, (v) section 7.32. (2) Ancillary aspects of development A consent may be granted subject to a condition that a specified aspect of the development that is ancillary to the core purpose of the development is to be carried out to the satisfaction, determined in accordance with the regulations, of the consent authority or a person specified by the consent authority. (3) A consent authority that has not determined a request to indicate whether a specified aspect of development has been carried out to the satisfaction of the consent authority, or a person specified by the consent authority, within the relevant period, prescribed by the regulations, applicable to the aspect or the development is, for the purpose only of section 8.7, taken to have determined the request by indicating that it, or the person, is not satisfied as to the specified aspect. (4) Conditions expressed in terms of outcomes or objectives A consent may be granted subject to a condition expressed in a manner that identifies both of the following— (a) one or more express outcomes or objectives that the development or a specified part or aspect of the development must achieve, (b) clear criteria against which achievement of the outcome or objective must be assessed. (4A) Conditions replaced by other legislative controls A development consent for the carrying out of development may be granted subject to specified conditions that cease to have effect on the issue of an authorisation under another Act relating to that development (or any part of it) if the consent authority is satisfied that the matters regulated by those conditions will be adequately addressed by such an authorisation when it is issued. The regulations may restrict the imposition of any such condition. (4B) Conditions relating to financial assurance A development consent may be granted subject to a condition of a kind described in Part 9.4 of the Protection of the Environment Operations Act 1997 to secure or guarantee funding for or towards the carrying out of works or programs required by or under the consent. The regulations may restrict the imposition of any such condition and may make provisions with respect to any such condition of the kind set out in that Part (including in relation to the calling on and use of any financial assurance). (5) Modification or surrender of consents or existing use rights If a consent authority imposes (as referred to in subsection (1)(b)) a condition requiring the modification or surrender of a consent granted under this Act or a right conferred by Division 4.11, the consent or right may be modified or surrendered subject to and in accordance with the regulations. (6) Conditions and other arrangements concerning security A development consent may be granted subject to a condition, or a consent authority may enter into an agreement with an applicant, that the applicant must provide security for the payment of the cost of any one or more of the following— (a) making good any damage caused to any property of the consent authority (or any property of the Planning Ministerial Corporation) as a consequence of the doing of anything to which the consent relates, (b) completing any public work (such as road work, kerbing and guttering, footway construction, stormwater drainage and environmental controls) required in connection with the consent, (c) remedying any defects in any such public work that arise within 6 months after the work is completed, (d) in relation to coastal protection works (within the meaning of the Coastal Management Act 2016 ), either or both of the following— (i) the maintenance of the works, (ii) the restoration of a beach, or land adjacent to the beach, if any increased erosion of the beach or adjacent land is caused by the presence of the works. (7) The security is to be for such reasonable amount as is determined by the consent authority. (8) The security may be provided, at the applicant’s choice, by way of— (a) deposit with the consent authority, or (b) a guarantee satisfactory to the consent authority. (9) The security is to be provided before carrying out any work in accordance with the development consent or at such other time as may be agreed to by the consent authority. (10) The funds realised from a security may be paid out to meet any cost referred to in subsection (6). Any balance remaining is to be refunded to, or at the direction of, the persons who provided the security. (10A) (10B) Review of extended hours of operation and number of persons permitted A development consent that is granted subject to a reviewable condition may be granted subject to a further condition that the consent authority may review that condition at any time or at intervals specified by the consent and that the reviewable condition may be changed on any such review. (10C) The regulations may make provision for or with respect to the kinds of development that may be subject to a further condition referred to in subsection (10B), the matters that must be included in such a condition and the procedures for a review under such a condition. (10D) A decision by a consent authority to change a reviewable condition on a review is taken to be a determination of a development consent for the purposes of this Act. Note. Accordingly, an application for review or appeal under Part 8 may be made in relation to a decision to change a reviewable condition. (10E) For the purposes of subsections (10B)–(10D), a reviewable condition means any of the following— (a) a condition that permits extended hours of operation (in addition to other specified hours of operation), (b) a condition that increases the maximum number of persons permitted in a building (in addition to the maximum number otherwise permitted). (11) Prescribed conditions A development consent is subject to such conditions as may be prescribed by the regulations. Note. Section 6.16(2) provides that a condition of consent has no effect to the extent that it requires a compliance certificate to be obtained in respect of any development. s 4.17 (previously s 80A): Renumbered 2017 No 60, Sch 4.2 [1]. Am 2016 No 20, Sch 4.1 [3]; 2023 No 7, Sch 2.25; 2023 No 10, Sch 1[2]. 4.18 Post-determination notification (cf previous s 81) (1) The consent authority must, in accordance with the regulations, notify its determination of a development application to— (a) the applicant, and (b) in the case of a development application for consent to carry out designated development, each person who made a submission under Schedule 1, and (c) such other persons as are required by the regulations to be notified of the determination of the development application. (2) If the consent authority is not the council, the consent authority must notify the council of its determination. (3) In the case of a development application for consent to carry out designated development, the consent authority must also notify each person who made a submission under Schedule 1 by way of objection of the person’s rights to appeal against the determination and of the applicant’s rights to appeal against the determination. (4) For the purposes of this section, designated development includes State significant development that would be designated development but for section 4.10(2). s 4.18 (previously s 81): Renumbered 2017 No 60, Sch 4.2 [1]. Am 2018 No 25, Sch 4 [19] [20]. 4.19 Consent for erection of building authorises use of building (cf previous s 81A) A development consent that authorises the erection of a building (but not the use of the building once erected) is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose was specified in the application for development consent. This section does not authorise the occupation of such a building if Part 6 requires an occupation certificate to be issued. s 4.19: Ins 2017 No 60, Sch 6.2 [5]. 4.20 Date from which development consent has effect (cf previous s 83) (1) A development consent has effect on and from the date it is registered on the NSW planning portal, except as provided by subsection (2). (2) A development consent for designated development has effect on and from the end of 28 days after the date it is registered on the NSW planning portal unless— (a) the development consent was granted following a public hearing by the Independent Planning Commission, or (b) the development is State significant development. Note. The date of effect of a consent for any such designated development is delayed by the period within which an objector may appeal to the Land and Environment Court against the grant of consent. (3) This section is subject to Part 8 (Reviews and appeals). s 4.20: Ins 2017 No 60, Sch 8.1 [1].

Later · as at December 15th, 2025

Part 4 > Division 4.3

Division 4.3 Development that needs consent (except complying development)

. 4.14 Consultation and development consent—certain bush fire prone land (cf previous s 79BA) (1) Development consent cannot be granted for the carrying out of development for any purpose (other than a subdivision of land that could lawfully be used for residential or rural residential purposes or development for a special fire protection purpose) on bush fire prone land (being land for the time being recorded as bush fire prone land on a relevant map certified under section 10.3(2)) unless the consent authority— (a) is satisfied that the development conforms to the specifications and requirements of the version (as prescribed by the regulations) of the document entitled Planning for Bush Fire Protection prepared by the NSW Rural Fire Service in co-operation with the Department (or, if another document is prescribed by the regulations for the purposes of this paragraph, that document) that are relevant to the development ( the relevant specifications and requirements ), or (b) has been provided with a certificate by a person who is recognised by the NSW Rural Fire Service as a qualified consultant in bush fire risk assessment stating that the development conforms to the relevant specifications and requirements. (1A) If the consent authority is satisfied that the development does not conform to the relevant specifications and requirements, the consent authority may, despite subsection (1), grant consent to the carrying out of the development but only if it has consulted with the Commissioner of the NSW Rural Fire Service concerning measures to be taken with respect to the development to protect persons, property and the environment from danger that may arise from a bush fire. (1B) This section does not apply to State significant development. (1C) The regulations may exclude development from the application of this section subject to compliance with any requirements of the regulations. The regulations may (without limiting the requirements that may be made)— (a) require the issue of a certificate by the Commissioner of the NSW Rural Fire Service or other qualified person in relation to the bush fire risk of the land concerned, and (b) authorise the payment of a fee for the issue of any such certificate. (2) In this section— special fire protection purpose has the same meaning as it has in section 100B of the Rural Fires Act 1997 . s 4.14 (previously s 79BA): Renumbered 2017 No 60, Sch 4.2 [1]. 4.15 Evaluation (cf previous s 79C) (1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application— (a) the provisions of— (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), (v) that apply to the land to which the development application relates, (b) the

2) Compliance with non-discretionary development standards—development other than complying development If an environmental planning instrument or a regulation contains non-discretionary development standards and development, not being complying development, the subject of a development application complies with those standards, the consent authority— (a) is not entitled to take those standards into further consideration in determining the development application, and (b) must not refuse the application on the ground that the development does not comply with those standards, and (c) must not impose a condition of consent that has the same, or substantially the same, effect as those standards but is more onerous than those standards, and the discretion of the consent authority under this section and section 4.16 is limited accordingly. (3) If an environmental planning instrument or a regulation contains non-discretionary development standards and development the subject of a development application does not comply with those standards— (a) subsection (2) does not apply and the discretion of the consent authority under this section and section 4.16 is not limited as referred to in that subsection, and (b) a provision of an environmental planning instrument that allows flexibility in the application of a development standard may be applied to the non-discretionary development standard. Note. The application of non-discretionary development standards to complying development is dealt with in section 4.28(3) and (4). (3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority— (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application. In this subsection, standards include performance criteria. (4) Consent where an accreditation is in force A consent authority must not refuse to grant consent to development on the ground that any building product or system relating to the development does not comply with a requirement of the Building Code of Australia if the building product or system is accredited in respect of that requirement in accordance with the regulations. (5) A consent authority and an employee of a consent authority do not incur any liability as a consequence of acting in accordance with subsection (4). (6) Definitions In this section— (a) reference to development extends to include a reference to the building, work, use or land proposed to be erected, carried out, undertaken or subdivided, respectively, pursuant to the grant of consent to a development application, and (b) non-discretionary development standards means development standards that are identified in an environmental planning instrument or a regulation as non-discretionary development standards. s 4.15 (previously s 79C): Renumbered 2017 No 60, Sch 4.2 [1]. Am 2016 No 20, Sch 4.1 [1] [2]. Am 2018 No 25, Sch 4 [5] [17]

. 4.16 Determination (cf previous s 80) (1) General A consent authority is to determine a development application by— (a) granting consent to the application, either unconditionally or subject to conditions, or (b) refusing consent to the application. (2) Despite subsection (1), the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development. (3) “Deferred commencement” consent A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations, as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition. (4) Total or partial consent A development consent may be granted— (a) for the development for which the consent is sought, or (b) for that development, except for a specified part or aspect of that development, or (c) for a specified part or aspect of that development. (5) The consent authority is not required to refuse consent to any specified part or aspect of development for which development consent is not initially granted under subsection (4), but development consent may subsequently be granted for that part or aspect of the development. Note. See also Division 4.4 for special procedures concerning concept development applications. (6) Restrictions on determination of development applications involving Independent Planning Commission If a consent authority (other than the Minister) has received notice that the Minister has requested that a review (with or without a public hearing) be conducted by the Independent Planning Commission in relation to all or any part of the development the subject of a development application, the consent authority must not determine the development application until— (a) the review has been conducted, and (b) the consent authority has considered the findings and recommendations of the Independent Planning Commission and any comments made by the Minister that accompanied those findings and recommendations when they were forwarded to the consent authority. (7) If the Minister has requested that a review (with or without a public hearing) be conducted by the Independent Planning Commission in relation to all or any part of the development the subject of a development application for which the Minister is the consent authority, the Minister must not determine the development application until— (a) the review has been conducted, and (b) the Minister has considered the findings and recommendations of the Independent Planning Commission. (8) (9) Restrictions on determination of development applications for designated development A consent authority must not determine a development application for designated development— (a) until after the submission period (within the meaning of Schedule 1) has expired, or (b) if a submission is made with respect to the application within the submission period, until after 21 days following the date on which a copy of the submission is forwarded to the Planning Secretary have expired. (10) Subsection (9)(b) does not apply— (a) to a consent authority being the Minister or the Planning Secretary, or (b) if the Planning Secretary has waived the requirement that submissions be forwarded to the Planning Secretary for a specified development application or for a specified class of development applications. (10A) (11) Other restrictions on determination of development applications The regulations may specify other matters of a procedural nature that are to be complied with before a development application may be determined. (12) Effect of issuing construction certificate If a consent authority or a registered certifier issues a construction certificate, the construction certificate and any approved plans and specifications issued with respect to that construction certificate, together with any variations to the construction certificate or plans and specifications that are effected in accordance with this Act or the regulations, are taken to form part of the relevant development consent (other than for the purposes of section 4.55). (13), (14) s 4.16 (previously s 80): Renumbered 2017 No 60, Sch 4.2 [1]. Am 2018 No 25, Sch 4 [5] [18]; 2018 No 63, Sch 3.3[4]. 4.17 Imposition of conditions (cf previous s 80A) (1) Conditions—generally A condition of development consent may be imposed if— (a) it relates to any matter referred to in section 4.15(1) of relevance to the development the subject of the consent, or (

b) it requires the modification or surrender of a consent granted under this Act or a right conferred by Division 4.11 in relation to the land to which the development application relates, or (c) it requires the modification or cessation of development (including the removal of buildings and works used in connection with that development) carried out on land (whether or not being land to which the development application relates), or (d) it limits the period during which development may be carried out in accordance with the consent so granted, or (e) it requires the removal of buildings and works (or any part of them) at the expiration of the period referred to in paragraph (d), or (f) it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 4.15(1) applicable to the development the subject of the consent, or (g) it modifies details of the development the subject of the development application, or (h) it is authorised to be imposed under the following— (i) section 4.16(3) or (5), (ii) subsections (5)–(9) of this section, (iii) section 7.11 or 7.12, (iv) Division 7.1, Subdivision 4, (v) section 7.32. (2) Ancillary aspects of development A consent may be granted subject to a condition that a specified aspect of the development that is ancillary to the core purpose of the development is to be carried out to the satisfaction, determined in accordance with the regulations, of the consent authority or a person specified by the consent authority. (3) A consent authority that has not determined a request to indicate whether a specified aspect of development has been carried out to the satisfaction of the consent authority, or a person specified by the consent authority, within the relevant period, prescribed by the regulations, applicable to the aspect or the development is, for the purpose only of section 8.7, taken to have determined the request by indicating that it, or the person, is not satisfied as to the specified aspect. (4) Conditions expressed in terms of outcomes or objectives A consent may be granted subject to a condition expressed in a manner that identifies both of the following— (a) one or more express outcomes or objectives that the development or a specified part or aspect of the development must achieve, (b) clear criteria against which achievement of the outcome or objective must be assessed. (4A) Conditions replaced by other legislative controls A development consent for the carrying out of development may be granted subject to specified conditions that cease to have effect on the issue of an authorisation under another Act relating to that development (or any part of it) if the consent authority is satisfied that the matters regulated by those conditions will be adequately addressed by such an authorisation when it is issued. The regulations may restrict the imposition of any such condition. (4B) Conditions relating to financial assurance A development consent may be granted subject to a condition of a kind described in Part 9.4 of the Protection of the Environment Operations Act 1997 to secure or guarantee funding for or towards the carrying out of works or programs required by or under the consent. The regulations may restrict the imposition of any such condition and may make provisions with respect to any such condition of the kind set out in that Part (including in relation to the calling on and use of any financial assurance). (5) Modification or surrender of consents or existing use rights If a consent authority imposes (as referred to in subsection (1)(b)) a condition requiring the modification or surrender of a consent granted under this Act or a right conferred by Division 4.11, the consent or right may be modified or surrendered subject to and in accordance with the regulations. (6) Conditions and other arrangements concerning security A development consent may be granted subject to a condition, or a consent authority may enter into an agreement with an applicant, that the applicant must provide security for the payment of the cost of any one or more of the following— (a) making good any damage caused to any property of the consent authority (or any property of the Planning Ministerial Corporation) as a consequence of the doing of anything to which the consent relates, (b) completing any public work (such as road work, kerbing and guttering, footway construction, stormwater drainage and environmental controls) required in connection with the consent, (c) remedying any defects in any such public work that arise within 6 months after the work is completed, (d) in relation to coastal protection works (within the meaning of the Coastal Management Act 2016 ), either or both of the following— (i) the maintenance of the works, (ii) the restoration of a beach, or land adjacent to the beach, if any increased erosion of the beach or adjacent land is caused by the presence of the works. (7) The security is to be for such reasonable amount as is determined by the consent authority. (8) The security may be provided, at the applicant’s choice, by way of— (a) deposit with the consent authority, or (b) a guarantee satisfactory to the consent authority. (9) The security is to be provided before carrying out any work in accordance with the development consent or at such other time as may be agreed to by the consent authority. (10) The funds realised from a security may be paid out to meet any cost referred to in subsection (6). Any balance remaining is to be refunded to, or at the direction of, the persons who provided the security. (10A) (10B) Review of extended hours of operation and number of persons permitted A development consent that is granted subject to a reviewable condition may be granted subject to a further condition that the consent authority may review that condition at any time or at intervals specified by the consent and that the reviewable condition may be changed on any such review. (10C) The regulations may make provision for or with respect to the kinds of development that may be subject to a further condition referred to in subsection (10B), the matters that must be included in such a condition and the procedures for a review under such a condition. (10D) A decision by a consent authority to change a reviewable condition on a review is taken to be a determination of a development consent for the purposes of this Act. Note. Accordingly, an application for review or appeal under Part 8 may be made in relation to a decision to change a reviewable condition. (10E) For the purposes of subsections (10B)–(10D), a reviewable condition means any of the following— (a) a condition that permits extended hours of operation (in addition to other specified hours of operation), (b) a condition that increases the maximum number of persons permitted in a building (in addition to the maximum number otherwise permitted). (11) Prescribed conditions A development consent is subject to such conditions as may be prescribed by the regulations. Note. Section 6.16(2) provides that a condition of consent has no effect to the extent that it requires a compliance certificate to be obtained in respect of any development. s 4.17 (previously s 80A): Renumbered 2017 No 60, Sch 4.2 [1]. Am 2016 No 20, Sch 4.1 [3]; 2023 No 7, Sch 2.25; 2023 No 10, Sch 1[2]

. 4.18 Post-determination notification (cf previous s 81) (1) The consent authority must, in accordance with the regulations, notify its determination of a development application to— (a) the applicant, and (b) in the case of a development application for consent to carry out designated development, each person who made a submission under Schedule 1, and (c) such other persons as are required by the regulations to be notified of the determination of the development application. (2) If the consent authority is not the council, the consent authority must notify the council of its determination. (3) In the case of a development application for consent to carry out designated development, the consent authority must also notify each person who made a submission under Schedule 1 by way of objection of the person’s rights to appeal against the determination and of the applicant’s rights to appeal against the determination. (4) For the purposes of this section, designated development includes State significant development that would be designated development but for section 4.10(2). s 4.18 (previously s 81): Renumbered 2017 No 60, Sch 4.2 [1]. Am 2018 No 25, Sch 4 [19] [20]. 4.19 Consent for erection of building authorises use of building (cf previous s 81A) A development consent that authorises the erection of a building (but not the use of the building once erected) is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose was specified in the application for development consent. This section does not authorise the occupation of such a building if Part 6 requires an occupation certificate to be issued. s 4.19: Ins 2017 No 60, Sch 6.2 [5]. 4.20 Date from which development consent has effect (cf previous s 83) (1) A development consent has effect on and from the date it is registered on the NSW planning portal, except as provided by subsection (2). (2) A development consent for designated development has effect on and from the end of 28 days after the date it is registered on the NSW planning portal unless— (a) the development consent was granted following a public hearing by the Independent Planning Commission, or (b) the development is State significant development. Note. The date of effect of a consent for any such designated development is delayed by the period within which an objector may appeal to the Land and Environment Court against the grant of consent. (3) This section is subject to Part 8 (Reviews and appeals). s 4.20: Ins 2017 No 60, Sch 8.1 [1].

Division 4.3 changed — commencement status not recorded

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Exact text — Division 4.3 — Development that needs consent (except complying development)