Environmental Planning and Assessment Regulation 2021

(2) Subsection (1) does not apply to the following— (a) an application made by a public authority, (b) land in the Snowy Mountains Activation Precinct under State Environmental Planning Policy (Precincts—Regional) 2021 .

Savings, transitional and other provisions Part 1 Repeal of Environmental Planning and Assessment Regulation 2000 1 Definitions In this Part— 2000 Regulation means the Environmental Planning and Assessment Regulation 2000 as in force immediately before its repeal on 1 March 2022. 2 Savings Any act, matter or thing that, immediately before the repeal of the 2000 Regulation, had effect under the 2000 Regulation continues to have effect under this Regulation. Note— The repeal of savings and transitional provisions contained in the 2000 Regulation does not, because of the Interpretation Act 1987 , section 30, affect the operation of the provisions. 3 Applications submitted before 1 March 2022 (1) The 2000 Regulation continues to apply instead of this Regulation to the following applications submitted but not finally determined before 1 March 2022— (a) a development application, (b) an application for a complying development certificate, (c) a modification application, (d) an application to modify a complying development. (2) Despite subsection (1), a requirement to use the NSW Planning Portal under the 2000 Regulation, clause 55(1), 55AA(2)(d) or 121B(1) does not apply if the development application or modification application is subject to proceedings in the Court. 4 Review of environmental factors for activities under the Act, Part 5 This Regulation, section 171 does not apply in relation to an activity if the determining authority had, immediately before 1 March 2022, considered the likely impact of the activity under the Act, section 5.5 and the 2000 Regulation, clause 228. 5 Council registers (1) The 2000 Regulation, clauses 264–267 and 268, as in force immediately before 1 March 2022, continue to apply to the following— (a) a development application lodged before 1 March 2022, (b) a development consent granted before 1 March 2022, (c) a development consent granted on or after 1 March 2022, if the development application was lodged before 1 March 2022, (d) an application for a complying development certificate lodged before 1 March 2022, (e) a complying development certificate issued before 1 March 2022, (f) a complying development certificate issued on or after 1 March 2022, if the application for the complying development certificate was lodged before 1 March 2022, (2) This Regulation, sections 240–243 apply to the following— (a) a development application made on or after 1 March 2022, (b) a development consent granted on or after 1 March 2022, if the development application was lodged on or after 1 March 2022, (c) an application for a complying development certificate lodged on or after 1 March 2022, (d) a complying development certificate issued on or after 1 March 2022, if the application for the complying development certificate was lodged on or after 1 March 2022. 6 Compliance fees (1) Section 259 does not apply to a relevant council in relation to a development application received by the relevant council on or before 31 December 2021. (2) A relevant council may charge a prohibited fee in relation to a development application received on or before 31 December 2021. (3) If a council charged a prohibited fee under subsection (2) and the applicant has not paid the fee on or by 31 December 2021— (a) a fee payable under this Regulation in relation to a development application is taken to be reduced by the amount of the prohibited fee, and (b) a council may not refuse to consider the development application because the amount of the prohibited fee remains unpaid. (4) The amount of the prohibited fee must not exceed the fee that would have been charged under the Environmental Planning and Assessment Regulation 2000 if the application was made immediately before 16 July 2021. (5) In this section— prohibited fee means a fee prohibited under section 259. relevant council means Ballina Shire Council, Bayside Council, Bellingen Shire Council, Byron Shire Council, Campbelltown City Council, Canterbury-Bankstown Council, City of Canada Bay Council, Georges River Council, Inner West Council, Ku-Ring-Gai Council, Lane Cove Municipal Council, Lismore City Council, Liverpool City Council, Mosman Municipal Council, Nambucca Valley Council, Newcastle City Council, North Sydney Council, Penrith City Council, Randwick City Council, Ryde City Council, the Council of the Municipality of Hunter’s Hill, the Council of the Municipality of Kiama, the Council of the Shire of Hornsby, The Hills Shire Council, Tamworth Regional Council, Tweed Shire Council, Waverley Council, Wollondilly Shire Council and Woollahra Municipal Council. Note— See also the 2000 Regulation, clause 298, as in force immediately before 1 March 2022, which continues to have effect despite its repeal because of the Interpretation Act 1987 , section 30. 7 Environmental assessment requirements and environmental impact statements Section 190(2) does not apply to an environmental impact statement submitted to the Planning Secretary on or before 31 March 2022 if the Planning Secretary last gave notice of the environmental assessment requirements before 1 October 2021. Note— See also the 2000 Regulation, clauses 298 and 299, as in force immediately before 1 March 2022, which continue to have effect despite their repeal because of the Interpretation Act 1987 , section 30. 8 Planning certificates (1) The 2000 Regulation, clause 279 and Schedule 4, as in force immediately before 1 March 2022, continues to apply until the end of 30 September 2022. (2) Section 290 applies on and from the beginning of 1 October 2022. Part 2 Environmental Planning and Assessment Regulation 2021 —Schedule 8 amendments 9 Environmental impact statements for State significant development and State significant infrastructure (1) Section 190(3), as substituted by the Environmental Planning and Assessment Regulation 2021 , Schedule 8[1] on 1 July 2022, does not apply to an environmental impact statement for State significant development or State significant infrastructure if— (a) the statement was submitted to the Planning Secretary on or before 31 December 2022, and (b) the notice of the environmental assessment requirements was last given to the responsible person under section 176 or the Act, section 5.16(4) before 1 July 2022. (2) Section 190(3), as in force immediately before 1 July 2022, continues to apply to the environmental impact statement. Part 3 Provision consequent on Environmental Planning and Assessment Amendment (Miscellaneous) Regulation (No 2) 2022 10 Written consent of owner of land This Regulation, section 23(1)(b), as in force immediately before the commencement of the Environmental Planning and Assessment Amendment (Miscellaneous) Regulation (No 2) 2022 , continues to apply to a development application lodged before 1 January 2023. Part 4 Provisions consequent on Environmental Planning and Assessment (Development Certification and Fire Safety) Amendment (Construction Certificates) Regulation 2023 11 Conditions of development consents (1) The amendments made to this Regulation, section 69 by the amending Regulation apply to an existing development consent only if a construction certificate has not been issued under the development consent for building work involving the entrance floor of the building. (2) To avoid doubt, an existing development consent to which the amendments apply is taken, on and from the commencement of the amending Regulation, to be subject to the condition specified in this Regulation, section 69(1), as amended by the amending Regulation. (3) In this section— amending Regulation means the Environmental Planning and Assessment (Development Certification and Fire Safety) Amendment (Construction Certificates) Regulation 2023 . entrance floor has the same meaning as in the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021 , section 19. existing development consent means a development consent that relates to a multi storey building in force immediately before the commencement of the amending Regulation. Part 5 Provision consequent on Environmental Planning and Assessment Amendment (Dubbo) Regulation 2023 12 Consideration of Dark Sky Planning Guideline A development application made but not finally determined before the commencement of the Environmental Planning and Assessment Amendment (Dubbo) Regulation 2023 must be determined as if that Regulation had not commenced. Part 6 Provisions consequent on Environmental Planning and Assessment Amendment (Conflict of Interest) Regulation 2023 13 Amendments do not apply to existing development applications An amendment made by the Environmental Planning and Assessment Amendment (Conflict of Interest) Regulation 2023 does not apply to a development application made but not finally determined before the commencement of the amendment. Part 7 Provisions consequent on Planning Legislation Amendment (National Construction Code) Regulation 2023 14 Compliance with Building Code of Australia (1) A development application lodged before 1 May 2023 must be determined as if the Planning Legislation Amendment (National Construction Code) Regulation 2023 , Schedule 1.3[1]–[7] and [9]–[11] had not commenced. (2) An application for a complying development certificate lodged before 1 May 2023 must be determined as if the Planning Legislation Amendment (National Construction Code) Regulation 2023 had not commenced. (3) For an application specified in subsection (1) or (2), a reference to the Building Code of Australia in this Regulation is a reference to the version of the Code as in force when the application was lodged. Part 8 Provisions consequent on Environmental Planning and Assessment Amendment (Notice Requirements) Regulation 2022 15 Notice not required to be in approved form for certain applications Notice of the following is not required to be given in the approved form— (a) a development application lodged, but not finally determined, before 30 June 2023, (b) a modification application if the original development application was lodged before 30 June 2023, (c) an application for review under the Act, Division 8.2 if the development application to which the review relates was lodged before 30 June 2023. Part 9 Provisions consequent on enactment of Environmental Planning and Assessment Amendment (Housing and Productivity Contributions) Act 2023 16 Definitions In this part— commencement day means 1 October 2023. continued 7.23 determination means a 7.23 determination that— (a) has been continued in force by the Act, Schedule 4, Part 1, and (b) has not been repealed as provided by that part. continued 7.24 direction means a 7.24 direction that— (a) has been continued in force by the Act, Schedule 4, Part 1, and (b) has not been repealed as provided by that part. continuing SCA planning agreement means an existing planning agreement that applies to development on land in a continuing special contributions area. continuing special contributions area means a special contributions area to which a continued 7.23 determination and a continued 7.24 direction apply. existing planning agreement means— (a) a planning agreement entered into before the commencement day and in force, including amendments to the planning agreement, if any, or (b) a proposed planning agreement in relation to which the period of public notice required under the Act, section 7.5 has commenced before the commencement day, including amendments to the proposed planning agreement, if any. former SCA planning agreement means an existing planning agreement that applies to development on land in a former special contributions area. former special contributions area means a special contributions area that is not subject to a continued 7.23 determination or a continued 7.24 direction. pending development application means— (a) a development application that is made, but not determined, before the commencement day, or (b) a development application that is made and determined before the commencement day but has not been finally determined, or (c) an application for a complying development certificate that is made, but not determined, before the commencement day. planning agreement has the same meaning as in the Act, Division 7.1. SCAI Fund means the Special Contributions Areas Infrastructure Fund as maintained and administered under the former SIC provisions immediately before the substitution of the provisions by the amending Act. special contributions area means a special contributions area within the meaning of the Act, Division 7.1, as in force immediately before the commencement day. Note— The Act, Schedule 4, Part 1 contains other definitions that affect the interpretation of this part. 17 Construction of references (1) Except as otherwise provided by this part, on and from the repeal or substitution of a provision of the Act by the amending Act— (a) a reference in a planning agreement to the provision repealed or substituted is not to be read as a reference to a corresponding provision of the Act inserted by the amending Act, and (b) a reference in a planning agreement to an act, matter or thing done under the provision repealed or substituted is not to be read as a reference to an act, matter or thing done under a corresponding provision of the Act inserted by the amending Act. (2) On and from the commencement day, a reference in a biodiversity certification order to a special infrastructure contribution is taken to include a reference to a housing and productivity contribution under the Act, Division 7.1, Subdivision 4. (3) In the application of a continued provision to a pending development application, a reference in the provision to a special contributions area is to be read— (a) if the development application applies to development on land in a continuing special contributions area—as a reference to a continuing special contributions area, or (b) if the development application applies to development on land in a former special contributions area—as a reference to a former special contributions area. (4) In this section— biodiversity certification order means an order made under the Threatened Species Conservation Act 1995 that— (a) confers biodiversity certification on an area of land, and (b) applies to a former special contributions area. continued provision means a repealed provision of an environmental planning instrument that continues to apply to a pending development application despite its repeal. 18 Planning certificates (1) During the transition period— (a) the matters set out in Schedule 2, section 3, as inserted by the Environmental Planning and Assessment Legislation Amendment (Housing and Productivity Contributions) Regulation 2023 , are not required to be specified in a planning certificate for the purposes of the Act, section 10.7, and (b) a reference in a planning certificate to a special contributions area, other than a continuing special contributions area, has no effect for the purposes of the Act, section 10.7. (2) In this section— transition period means the period commencing on the commencement day and ending immediately before 1 February 2024. 19 Continuation of Special Contributions Areas Infrastructure Fund (1) The SCAI Fund continues in existence despite the repeal of the former SIC provisions by the amending Act. (2) The Act, Division 7.1, Subdivision 5, as in force immediately before its repeal by the amending Act, continues to apply to and in relation to— (a) the SCAI Fund, and (b) money in the SCAI Fund immediately before the commencement day, and (c) money to be paid into the SCAI Fund. 20 Dissolution of Special Contributions Areas Infrastructure Fund (1) The Minister may, by order published in the Gazette— (a) designate a day as the dissolution day for the purposes of this section, and (b) designate the proportion of the existing special infrastructure contributions in relation to development within each special contributions area that is to be paid under this section to each of the following funds— (i) the SBC Fund, (ii) the HAP Fund. (2) An order must not be made under subsection (1) if a continued 7.23 determination or a continued 7.24 direction is in force. (3) On the dissolution day— (a) the SCAI Fund is dissolved, and (b) the existing special infrastructure contributions in relation to development within each special contributions area are transferred to the SBC Fund and the HAP Fund in the proportions designated for the area under subsection (1), and (c) all other money standing to the credit of the SCAI Fund immediately before the dissolution day is transferred to the SBC Fund and the HAP Fund in the same proportions as the existing special infrastructure contributions under paragraph (b). (4) On and from the dissolution day, money required to be paid into the SCAI Fund in relation to development within a special contributions area is to be paid into the SBC Fund and the HAP Fund in the proportions designated for the area under subsection (1). (5) In this section— existing special infrastructure contributions means money— (a) standing to the credit of the SCAI Fund immediately before the dissolution day, and (b) paid to the fund as monetary contributions, or proceeds of the sale of land, under the former SIC provisions in relation to development within a special contributions area. HAP Fund means the Housing and Productivity Fund established under the Act, Division 7.1, Subdivision 5. SBC Fund means the Strategic Biodiversity Contributions Fund established under the Act, Division 7.1, Subdivision 4. 21 Application of amendments to continued 7.24 directions (1) The Act, section 4.8(4)(b), as amended by the amending Act, extends to the functions of a consent authority in relation to a continued 7.24 direction. (2) In the application of the Act, section 4.8(4)(b) to a continued 7.24 direction, the reference in the paragraph to “section 7.28” is to be read as a reference to “section 7.24, as in force before its substitution by the Environmental Planning and Assessment Amendment (Housing and Productivity Contributions) Act 2023 ”. (3) The Act, section 4.17(1)(h), as substituted by the amending Act, extends to a condition authorised or required to be imposed in accordance with former section 7.24. (4) In the application of the Act, section 4.17(1)(h) to a condition authorised or required to be imposed in accordance with former section 7.24, a reference in the Act, section 4.17(1)(h)(iv) to “Division 7.1, Subdivision 4” is to be read as a reference to “section 7.24, as in force before its substitution by the Environmental Planning and Assessment Amendment (Housing and Productivity Contributions) Act 2023 ”. (5) The Act, section 7.12(2A) does not apply to a continuing special contributions area. (6) In this section— continued 7.24 direction includes a 7.24 direction that— (a) applies to a pending development application, and (b) has been repealed as provided by the Act, Schedule 4, Part 1. 22 Existing planning agreements—general (1) An existing planning agreement that excludes, wholly or partly, the application of former section 7.24 to development is taken on and from the commencement day to exclude, to the same extent, the application of the Act, Division 7.1, Subdivision 4 to the development. (2) An existing planning agreement that does not exclude the application of former section 7.24 to development is taken on and from the commencement day not to exclude the application of the Act, Division 7.1, Subdivision 4 to the development. (3) Subsections (1) and (2) do not apply— (a) to a continuing SCA planning agreement, or (b) to a former SCA planning agreement that applies to development the subject of a pending development application, or (c) to an existing planning agreement to the extent that the agreement otherwise expressly provides. 23 Existing planning agreements—continuing special contributions areas (1) A continuing SCA planning agreement that excludes, wholly or partly, the application of former section 7.24 to development— (a) continues on and from the commencement day to exclude, to the same extent, the application of former section 7.24 to the development, and (b) is taken on and from the commencement day to exclude, to the same extent, the application of the Act, Division 7.1, Subdivision 4 to the development. (2) A continuing SCA planning agreement that does not exclude the application of former section 7.24 to development— (a) continues on and from the commencement day not to exclude the application of former section 7.24 to the development, and (b) is taken on and from the commencement day not to exclude the application of the Act, Division 7.1, Subdivision 4 to the development. (3) Subsections (1) and (2) do not apply to the extent that a continuing SCA planning agreement otherwise expressly provides. 24 Existing planning agreements—former special contributions areas (1) To the extent that a former SCA planning agreement applies to development that is the subject of a pending development application— (a) if the agreement excludes, wholly or partly, the application of former section 7.24 to the development—the agreement continues on and from the commencement day to exclude, to the same extent, the application of former section 7.24 to the development, or (b) if the agreement does not exclude the application of former section 7.24 to the development—the agreement continues on and from the commencement day not to exclude the application of former section 7.24 to the development. (2) To the extent that a former SCA planning agreement applies to development that is not the subject of a pending development application— (a) if the agreement excludes, wholly or partly, the application of former section 7.24 to the development—the agreement is taken on and from the commencement day to exclude, to the same extent, the application of the Act, Division 7.1, Subdivision 4 to the development, or (b) if the agreement does not exclude the application of former section 7.24 to the development—the agreement is taken on and from the commencement day not to exclude the application of the Act, Division 7.1, Subdivision 4 to the development. (3) Subsections (1) and (2) do not apply to the extent that a former SCA planning agreement otherwise expressly provides. 25 Proposed planning agreements (1) In the application of the Act, section 7.4(5A) to a proposed planning agreement, a reference in the subsection to “Division 7.1, Subdivision 4” is taken to include a reference to “former section 7.24”. (2) In this section— proposed planning agreement means a proposed planning agreement— (a) that is a continuing SCA planning agreement or a former SCA planning agreement, and (b) in relation to which the period of public notice required under the Act, section 7.5 has commenced before the commencement day. 26 New planning agreements (1) In the application of an amended provision to a new planning agreement, a reference in the provision to “Division 7.1, Subdivision 4” is taken to include a reference to “former section 7.24”. (2) To avoid doubt, a planning agreement that applies to development referred to in subsection (1) must provide for whether the agreement wholly or partly excludes the application of each of the following— (a) former section 7.24, (b) the Act, Division 7.1, Subdivision 4. (3) In this section— amended provision means either of the following provisions of the Act— (a) section 7.4(3)(d), as inserted by the amending Act, (b) section 7.4(5A), as amended by the amending Act. new planning agreement means a planning agreement, other than an existing planning agreement, that applies to— (a) development on land in a continuing special contributions area, or (b) development on land in a former special contributions area that is subject to a pending development application. Part 10 Provision consequent on Environmental Planning and Assessment Amendment (Exceptions to Development Standards) Regulation 2023 27 Application of amendments Sections 35B and 90A, as inserted by the Environmental Planning and Assessment Amendment (Exceptions to Development Standards) Regulation 2023 , apply only to a development application made on or after 1 November 2023. Part 11 Provision consequent on Environmental Planning and Assessment Amendment (Estimated Development Cost) Regulation 2023 28 Application of amendments (1) The amendments to this regulation made by the Environmental Planning and Assessment Amendment (Estimated Development Cost) Regulation 2023 do not apply to the following— (a) a development application submitted on the NSW planning portal but not finally determined before the commencement date, (b) a modification application, if the original development application was submitted on the NSW planning portal before the commencement date, (c) an application for approval of State significant infrastructure made but not finally determined before the commencement date, (d) a request for modification of an approval of State significant infrastructure, if the original application for approval was made before the commencement date, (e) an application for a complying development certificate made but not finally determined before the commencement date, (f) an application under the Act, section 4.30 to modify complying development, if the original application for a complying development certificate was made before the commencement date, (g) an application for review made but not finally determined before the commencement date. (2) In this section— commencement date means 4 March 2024. Part 12 Provision consequent on Environmental Planning and Assessment Amendment (Hornsby Transport Oriented Development Precinct) Regulation 2024 29 Application of amendments An amendment made by the Environmental Planning and Assessment Amendment (Hornsby Transport Oriented Development Precinct) Regulation 2024 does not apply to a development application made, but not finally determined, before the commencement of the amendment. Part 13 Provision consequent on Environmental Planning and Assessment Amendment (Macquarie Park Transport Oriented Development Precinct) Regulation 2024 30 Application of amendments An amendment made by the Environmental Planning and Assessment Amendment (Macquarie Park Transport Oriented Development Precinct) Regulation 2024 does not apply to a development application made, but not finally determined, before the commencement of the amendment. sch 6: Am 2021 (759), Sch 8[11]; 2022 (142), Sch 1[15]–[17]; 2022 (530), Sch 1[6] (am 2022 (702), Sch 2.1[2]); 2022 (702), Sch 1[22]–[24]; 2023 (30), Sch 2[3]; 2023 (67), sec 3(2); 2023 (71), Sch 1.3[12]; 2023 (95), sec 4(3); 2023 (512), Sch 1[16]; 2023 (513), Sch 1[3]; 2023 (547), Sch 1[6]; 2024 (97), Sch 1[4]; 2024 (588), Sch 1[4]; 2024 (589), Sch 1[4].