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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Environmental Planning and
Assessment Amendment (Quality of
Construction) Bill 2003
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Environmental Planning and Assessment
Act 1979 No 203 2
4 Amendment of environmental planning and assessment
regulations 2
5 Repeal of certain uncommenced amendments 2
Schedule 1 Amendment of Environmental Planning and Assessment
Act 1979 3
Schedule 2 Amendment of regulations 21
Environmental Planning and Assessment Amendment (Quality of Construction) Bill 2003
Contents
Page
Contents page 2
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2003
New South Wales
Environmental Planning and
Assessment Amendment (Quality of
Construction) Bill 2003
Act No , 2003
An Act to amend the Environmental Planning and Assessment Act 1979 and
certain regulations with respect to the quality of building construction; and for
other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Environmental Planning and Assessment Amendment (Quality of
Clause 1 Construction) Bill 2003
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Environmental Planning and Assessment
Amendment (Quality of Construction) Act 2003.
2 Commencement
(1) Except as provided by subsection (2), this Act commences on a day
or days to be appointed by proclamation.
(2) Sections 3 and 5 and Schedule 1 [27], [32], [39] and [42]-[44]
commence on the date of assent to this Act.
3 Amendment of Environmental Planning and Assessment Act 1979
No 203
The Environmental Planning and Assessment Act 1979 is amended
as set out in Schedule 1.
4 Amendment of environmental planning and assessment regulations
The Environmental Planning and Assessment Regulation 2000 and
the Environmental Planning and Assessment (Savings and
Transitional) Regulation 1998 are amended as set out in Schedule 2.
5 Repeal of certain uncommenced amendments
Schedule 1.1 [6]-[13], [15]-[30], [32], [33], [36] and [41], 1.2 [1]-
[24] and 1.3 to the Building Legislation Amendment (Quality of
Construction) Act 2002 are repealed.
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Environmental Planning and Assessment Amendment (Quality of
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Amendment of Environmental Planning and Assessment Act 1979 Schedule 1
Schedule 1 Amendment of Environmental Planning
and Assessment Act 1979
(Section 3)
[1] Section 4 Definitions
Omit "of that name published on behalf of the Australian Building Codes
Board in October 1996" from the definition of Building Code of Australia
in section 4 (1).
Insert instead ", published by or on behalf of the Australian Building
Codes Board, that is prescribed for purposes of this definition by the
regulations".
[2] Section 4
Insert in alphabetical order in section 4 (1):
critical stage inspections means the inspections prescribed by
the regulations for the purposes of section 109E (3) (d).
principal contractor for building work means the person
responsible for the overall co-ordination and control of the
carrying out of the building work.
Note. If any residential building work is involved, the principal contractor
must be the holder of a contractor licence under the Home Building Act
1989.
owner-builder has the same meaning as in the Home Building
Act 1989.
residential building work has the same meaning as in the
Home Building Act 1989.
[3] Section 22 Establishment of other committees
Insert "Minister or" before "Director-General" in section 22 (1).
[4] Section 22 (3)
Omit the subsection. Insert instead:
(3) The person who establishes a committee under this section
may appoint one of the members as Chairperson of the
committee.
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Environmental Planning and Assessment Amendment (Quality of
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Schedule 1 Amendment of Environmental Planning and Assessment Act 1979
[5] Section 80 Determination
Insert ", together with any variations to the construction certificate or
plans and specifications that are effected in accordance with this Act or the
regulations," before "are taken" in section 80 (12).
[6] Section 80 (13) and (14)
Omit the subsections, including the note appearing after subsection (14).
[7] Section 81A Effects of development consents and
commencement of development
Omit section 81A (2) (a) and (b). Insert instead:
(a) a construction certificate for the building work has been
issued by the consent authority, the council (if the
council is not the consent authority) or an accredited
certifier, and
(b) the person having the benefit of the development
consent has:
(i) appointed a principal certifying authority for the
building work, and
(ii) notified the principal certifying authority that the
person will carry out the building work as an
owner-builder, if that is the case, and
(b1) the principal certifying authority has, no later than 2
days before the building work commences:
(i) notified the consent authority and the council (if
the council is not the consent authority) of his or
her appointment, and
(ii) notified the person having the benefit of the
development consent of any critical stage
inspections and other inspections that are to be
carried out in respect of the building work, and
(b2) the person having the benefit of the development
consent, if not carrying out the work as an owner-
builder, has:
(i) appointed a principal contractor for the building
work who must be the holder of a contractor
licence if any residential building work is
involved, and
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Environmental Planning and Assessment Amendment (Quality of
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Amendment of Environmental Planning and Assessment Act 1979 Schedule 1
(ii) notified the principal certifying authority of any
such appointment, and
(iii) unless that person is the principal contractor,
notified the principal contractor of any critical
stage inspections and other inspections that are to
be carried out in respect of the building work, and
[8] Section 81A (4) (a), (b) and (b1)
Omit section 81A (4) (a) and (b). Insert instead:
(a) a construction certificate for the subdivision work has
been issued by the consent authority, the council (if the
council is not the consent authority) or an accredited
certifier, and
(b) the person having the benefit of the development
consent has appointed a principal certifying authority
for the subdivision work, and
(b1) the principal certifying authority has, no later than 2
days before the subdivision work commences:
(i) notified the consent authority and the council (if
the council is not the consent authority) of his or
her appointment, and
(ii) notified the person having the benefit of the
development consent of any critical stage
inspections and other inspections that are to be
carried out in respect of the subdivision work,
and
[9] Section 81A (6) and (7)
Insert after section 81A (5):
(6) Crown building work
Subsections (2) and (4) do not apply in relation to Crown
building work that is certified, in accordance with section
116G, to comply with the technical provisions of the State's
building laws.
(7) Penalty for contravention of subsection (2) or (4)
The maximum penalty that may be imposed for a
contravention of subsection (2) or (4) is 300 penalty units.
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Environmental Planning and Assessment Amendment (Quality of
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Schedule 1 Amendment of Environmental Planning and Assessment Act 1979
[10] Section 86 Commencement of complying development
Omit section 86 (1) (a). Insert instead:
(a) the person having the benefit of the complying
development certificate has:
(i) appointed a principal certifying authority for the
building work, and
(ii) notified the principal certifying authority that the
person will carry out the building work as an
owner-builder, if that is the case, and
(a1) the principal certifying authority has, no later than 2
days before the building work commences:
(i) notified the council of his or her appointment,
and
(ii) notified the person having the benefit of the
complying development certificate of any critical
stage inspections and other inspections that are to
be carried out in respect of the building work, and
(a2) the person having the benefit of the complying
development certificate, if not carrying out the work as
an owner-builder, has:
(i) appointed a principal contractor for the building
work who must be the holder of a contractor
licence if any residential building work is
involved, and
(ii) notified the principal certifying authority of any
such appointment, and
(iii) unless that person is the principal contractor,
notified the principal contractor of any critical
stage inspections and other inspections that are to
be carried out in respect of the building work, and
[11] Section 86 (2) (a) and (a1)
Omit section 86 (2) (a). Insert instead:
(a) the person having the benefit of the complying
development certificate has appointed a principal
certifying authority for the subdivision work, and
(a1) the principal certifying authority has, no later than
2 days before the subdivision work commences,
notified the council of his or her appointment, and
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Environmental Planning and Assessment Amendment (Quality of
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Amendment of Environmental Planning and Assessment Act 1979 Schedule 1
[12] Section 86 (3) and (4)
Insert after section 86 (2):
(3) Crown development
Subsections (1) and (2) do not apply in relation to
development carried out by the Crown.
(4) Penalty for contravention of subsection (1) or (2)
The maximum penalty that may be imposed for a
contravention of subsection (1) or (2) is 300 penalty units.
[13] Section 105 Regulations--Part 4
Insert after section 105 (1) (n):
(n1) authorising a consent authority or council to impose a
fee with respect to the lodging of any complying
development certificate with it, whether pursuant to a
requirement made by or under this Act or otherwise,
[14] Section 109C Part 4A certificates
Insert after section 109C (1):
(1A) A single compliance certificate may deal with any number of
matters, whether of the same or of a different kind.
[15] Section 109D Certifying authorities
Omit "or accredited" wherever occurring in section 109D (1) (a), (b) and
(c).
Insert instead ", the council or an accredited".
[16] Section 109D (1) (d) (i)
Insert "or the council" after "authority".
[17] Section 109D (3)
Insert "work" after "the subdivision".
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Environmental Planning and Assessment Amendment (Quality of
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Schedule 1 Amendment of Environmental Planning and Assessment Act 1979
[18] Section 109E Principal certifying authorities
Omit section 109E (1). Insert instead:
(1) The person having the benefit of a development consent or
complying development certificate for development
involving building work or subdivision work may appoint the
consent authority, the council or an accredited certifier as the
principal certifying authority for the development.
(1A) Despite subsection (1), such an appointment may not be made
by any contractor or other person who will carry out the
building work or subdivision work unless the contractor or
other person is the owner of the land on which the work is to
be carried out.
[19] Section 109E (3) and (4)
Omit the subsections (but not the note appearing after subsection (4)).
Insert instead:
(3) A principal certifying authority for building work or
subdivision work to be carried out on a site is required to be
satisfied:
(a) that a construction certificate or complying
development certificate has been issued for such of the
building work or subdivision work as requires
development consent and over which the principal
certifying authority has control, before the work
commences on the site, and
(b) that the principal contractor for the work is the holder
of the appropriate licence and is covered by the
appropriate insurance, in each case if required by the
Home Building Act 1989, before any residential
building work over which the principal certifying
authority has control commences on the site, unless the
work is to be carried out by an owner-builder, and
(c) that the owner-builder is the holder of any owner-
builder permit required under the Home Building Act
1989, before an owner-builder commences on the site
any residential building work over which the principal
certifying authority has control, and
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Amendment of Environmental Planning and Assessment Act 1979 Schedule 1
(d) that building work or subdivision work on the site has
been inspected by the principal certifying authority or
another certifying authority on such occasions (if any)
as are prescribed by the regulations and on such other
occasions as may be required by the principal certifying
authority, before the principal certifying authority
issues an occupation certificate or subdivision
certificate for the building or work, and
(e) that any preconditions required by a development
consent or complying development certificate to be met
for the work before the issue of an occupation
certificate or subdivision certificate have been met,
before the principal certifying authority issues the
occupation certificate or subdivision certificate.
(4) A principal certifying authority must also comply with such
other requirements of a like or different nature as may be
imposed on principal certifying authorities by the regulations.
[20] Section 109EA
Insert after section 109E:
109EA Replacement of principal certifying authorities
(1) Unless the relevant authority so approves in writing, a person
may not be appointed to replace another person as the
principal certifying authority for development.
(2) For the purposes of this section, the relevant authority is:
(a) if the person previously appointed is an accredited
certifier, the accreditation body by which the person is
accredited, or
(b) if the person previously appointed is the consent
authority or the council, the consent authority or the
council.
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Environmental Planning and Assessment Amendment (Quality of
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Schedule 1 Amendment of Environmental Planning and Assessment Act 1979
[21] Section 109H Restrictions on issue of occupation certificates
Insert before subsection (1):
(1A) There are two kinds of occupation certificates, as follows:
(a) an interim occupation certificate that authorises a
person to commence occupation or use of a partially
completed new building, or to commence a new use of
part of a building resulting from a change of building
use for an existing building,
(b) a final occupation certificate that authorises a person to
commence occupation or use of a new building, or to
commence a new use of a building resulting from a
change of building use for an existing building.
It is not necessary for an interim occupation certificate to be
issued before a final occupation certificate is issued with
respect to the same building.
(1B) An occupation certificate must not be issued unless any
preconditions to the issue of the certificate that are specified
in a development consent or complying development
certificate have been met.
(1C) An interim occupation certificate must not be issued to
authorise a person to commence to occupy or use a partially
completed new building unless the certifying authority is
satisfied:
(a) that a development consent or complying development
certificate is in force with respect to the building, and
(b) in the case of a building erected pursuant to a
development consent but not a complying development
certificate, that a construction certificate has been
issued with respect to the plans and specifications for
the building, and
(c) that the partially completed building is suitable for
occupation or use in accordance with its classification
under the Building Code of Australia, and
(d) that such other requirements as are required by the
regulations to be complied with before such a certificate
may be issued have been complied with.
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Environmental Planning and Assessment Amendment (Quality of
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Amendment of Environmental Planning and Assessment Act 1979 Schedule 1
(1D) An interim occupation certificate must not be issued to
authorise a person to commence a new use in part of a
building resulting from a change of building use of an existing
building unless the certifying authority is satisfied:
(a) that a development consent or complying development
certificate is in force with respect to the change of
building use, and
(b) that the part of the building is suitable for occupation or
use in accordance with its classification under the
Building Code of Australia, and
(c) that such other requirements as are required by the
regulations to be complied with before such a certificate
may be issued have been complied with.
[22] Section 109H (2)
Insert "a new use of a building resulting from" after "commence".
[23] Section 109H (3)
Omit the subsection.
[24] Section 109M Occupation and use of new building requires
occupation certificate
Omit "Maximum penalty: 25 penalty units." from section 109M (1).
Insert instead:
Maximum penalty:
(a) in the case of a class 1a or class 10 building, as referred
to in the Building Code of Australia--5 penalty units, or
(b) in the case of any other building--1,000 penalty units.
[25] Section 109N Change of building use of existing building requires
occupation certificate
Omit "commence" from section 109N (1). Insert instead "effect".
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Schedule 1 Amendment of Environmental Planning and Assessment Act 1979
[26] Section 109Q Regulations under Part 4A
Insert at the end of the section:
(2) In particular, the regulations may authorise a consent
authority or council to impose a fee with respect to any Part
4A certificate that is lodged with it, whether pursuant to a
requirement of this Act or the regulations or otherwise.
[27] Section 109T Accreditation of accredited certifiers
Insert ", and may impose conditions on their accreditation," after
"certifiers" in section 109T (1).
[28] Section 109T (2A)
Insert after section 109T (2):
(2A) For the purposes of subsection (2) (b), an accreditation body
may rely on a certificate of currency or an appropriate current
insurance policy that has been issued by an insurer and that
states that, in respect of a specified period, a specified
accredited certifier is covered by the required insurance
(within the meaning of section 109ZN).
[29] Section 109U Auditing of accredited certifiers
Omit the section.
[30] Section 109ZA Tribunal may make certain disciplinary findings
Omit "section 109U or 109Z" from section 109ZA (1).
Insert instead "section 109Z or 118Q".
[31] Section 109ZA (2) (e)
Omit "300". Insert instead "1,000".
[32] Section 109ZF General provisions concerning disciplinary
proceedings
Omit section 109ZF (2). Insert instead:
(2) A complaint against an accredited certifier may be made and
dealt with even though the person's right to practise as an
accredited certifier has been suspended or his or her
accreditation has been withdrawn or lapsed. For that purpose,
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Amendment of Environmental Planning and Assessment Act 1979 Schedule 1
a reference in this Division to an accredited certifier includes
a reference to a person whose right to practise as such has
been suspended or whose accreditation has been withdrawn or
lapsed.
[33] Section 109ZG Conflicts of interest
Insert after section 109ZG (1):
(1AA) Subsection (1) (a) does not make it an offence for an
accredited certifier (otherwise than as a principal certifying
authority) to issue a compliance certificate of the kind
referred to in section 109C (1) (a) (i) for any aspect of
development in respect of which he or she has been involved
in the preparation of plans and specifications.
[34] Section 109ZN Accredited certifiers
Insert after section 109ZN (2):
(3) For the purposes of this section, an accredited certifier who is
employed by a council to exercise the functions of a certifying
authority on its behalf, whether within or beyond its area, is
covered by the required insurance if the council is
indemnified by its general insurance policy against any
liability to which it may become subject as a result of the
exercise of those functions by the accredited certifier.
[35] Section 116G Building, demolition and incidental work
Omit section 116G (6).
[36] Section 118A Power of entry
Insert "under this Act and the regulations" after "functions" in section
118A (2B).
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Environmental Planning and Assessment Amendment (Quality of
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Schedule 1 Amendment of Environmental Planning and Assessment Act 1979
[37] Part 6, Division 1B
Insert after Division 1A:
Division 1B Investigation of certifying authorities
118O Definitions
In this Division:
Departmental auditor means a Departmental auditor
appointed under section 118P or 118Q.
Tribunal means the Administrative Decisions Tribunal.
118P Investigation of councils acting as certifying authorities
(1) The Director-General may appoint a member of staff of the
Department as a Departmental auditor to investigate the work
and activities of a council in its capacity as a certifying
authority.
(2) The Departmental auditor must report to the Director-General
on the results of the investigation.
(3) The Director-General must send a copy of the report to the
Director-General of the Department of Local Government
and to the council.
(4) A report furnished to the council under this section must be
presented at the next meeting of the council after the report is
received.
(5) Within 40 days after it receives a report under this section, a
council must give written notice to the Director-General of
the things done or proposed to be done to give effect to any
recommendations contained in the report.
118Q Investigation of accredited certifiers acting as certifying
authorities
(1) The Director-General may appoint a member of staff of the
Department as a Departmental auditor to investigate the work
and activities of an accredited certifier in his or her capacity
as a certifying authority.
(2) The Departmental auditor must report to the Director-General
on the results of the investigation.
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(3) The Director-General must send a copy of the report to the
accredited certifier.
(4) If satisfied, as a result of any such investigation, that the
accredited certifier is or may be guilty of unsatisfactory
professional conduct or professional misconduct within the
meaning of Part 4B, the Director-General:
(a) may also furnish a copy of the report to the relevant
accreditation body and any person prescribed by the
regulations, and
(b) may apply to the Tribunal for a disciplinary finding
against an accredited certifier with respect to any matter
arising from the report.
(5) If the Director-General applies to the Tribunal as referred to
in subsection (4) (b), the Director-General may, by order in
writing served on the accredited certifier, suspend the
accredited certifier's authority to exercise the functions of an
accredited certifier pending the Tribunal's decision on the
application.
(6) An order under subsection (5) may be varied or revoked by
the Tribunal at any time before or during proceedings on an
application referred to in subsection (4) (b).
118R Powers of Departmental auditor
(1) A Departmental auditor may direct a person to do any one or
more of the following:
(a) to appear personally before the Departmental auditor at
a time and place specified in the direction,
(b) to give evidence (including evidence on oath),
(c) to produce to the Departmental auditor any document
that is in that person's custody or under that person's
control,
(d) to grant to the Departmental auditor such authorities as
may be necessary to enable the Departmental auditor to
gain access to any document that is in the custody or
under the control of any other person.
(2) A person to whom such a direction is given must not fail to
comply with the direction.
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Schedule 1 Amendment of Environmental Planning and Assessment Act 1979
(3) For the purposes of this section, a Departmental auditor may
administer an oath.
(4) A Departmental auditor may take copies of or extracts from
any document to which the Departmental auditor gains access
under this section.
(5) For the purposes of this section, a Departmental auditor is
taken to have been authorised by the Director-General to enter
premises under Division 1A, and, subject to the regulations,
may exercise the functions conferred on a person so
authorised by or under that Division.
[38] Section 121H Notice to be given of proposed order
Insert after section 121H (4):
(5) Notice to principal certifying authority
If a council proposes to give an order in relation to building
work or subdivision work for which the council is not the
principal certifying authority, the council must give the
principal certifying authority notice of its intention to give the
order.
[39] Section 127 Proceedings for offences
Omit section 127 (5) and (6). Insert instead:
(5) Proceedings for an offence against this Act or the regulations
may be commenced not later than 2 years after the offence
was alleged to be committed.
[40] Section 148A
Insert after section 148:
148A Improper influence with respect to conduct of accredited
certifier acting as certifying authority
(1) An accredited certifier must not, on an understanding that he
or she will act otherwise than impartially in the exercise of his
or her functions as a certifying authority, seek or accept, or
offer or agree to accept, any benefit of any kind, whether on
his or her own behalf or on behalf of any other person.
Maximum penalty: 10,000 penalty units or imprisonment for
2 years, or both.
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Amendment of Environmental Planning and Assessment Act 1979 Schedule 1
(2) A person must not, on an understanding that an accredited
certifier will act otherwise than impartially in the exercise of
his or her functions as a certifying authority, give, or offer or
agree to give, any benefit of any kind, whether to the
accredited certifier or to any other person.
Maximum penalty: 10,000 penalty units or imprisonment for
2 years, or both.
(3) In this section, a reference to the functions of a certifying
authority includes a reference to the functions of a principal
certifying authority under section 109E.
[41] Section 157 Regulations
Insert after section 157 (1) (c):
(c1) the content, form, erection, maintenance and removal
of signs relating to the carrying out of development or
persons involved with the carrying out of development,
or
[42] Schedule 6 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
Environmental Planning and Assessment Amendment
(Quality of Construction) Act 2003
[43] Schedule 6, Part 12
Omit clauses 46-56 and 58-60.
[44] Schedule 6
Insert at the end of the Schedule, with appropriate Part and clause
numbers:
Part Environmental Planning and
Assessment Amendment (Quality of
Construction) Act 2003
Definition
In this Part, the 2003 amending Act means the Environmental
Planning and Assessment Amendment (Quality of
Construction) Act 2003.
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Schedule 1 Amendment of Environmental Planning and Assessment Act 1979
Saving of appointment of Chairperson by Director-General
The substitution of section 22 (3) by the 2003 amending Act
does not affect any appointment of a Chairperson under that
provision as in force before the substitution.
Nature of construction certificate
Section 80 (12), as amended by the 2003 amending Act,
extends to any variation to a construction certificate, plan or
specification that lawfully occurred before the
commencement of that amendment.
Commencement of development under development consents
Section 81A, as amended by the 2003 amending Act, extends
to building work or subdivision work the subject of a
development consent granted before the commencement of
those amendments unless the work had begun before that
commencement.
Commencement of development under complying
development certificates
Section 86, as amended by the 2003 amending Act, extends to
building work or subdivision work the subject of a complying
development certificate issued before the commencement of
those amendments unless the work had begun before that
commencement.
Part 4A certificates
Section 109C (1A), as inserted by the 2003 amending Act,
extends to matters arising before the commencement of that
subsection.
Appointment of principal certifying authorities
Section 109E, as amended by the 2003 amending Act, extends
to any development consent or complying development
certificate issued before the commencement of those
amendments for which a principal certifying authority needs
to be appointed after that commencement.
Replacement of principal certifying authorities
Section 109EA, as inserted by the 2003 amending Act,
extends to the replacement of a principal certifying authority
who had been appointed before the commencement of that
section.
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Restriction on issue of occupation certificates
Section 109H (1B), as inserted by the 2003 amending Act,
does not apply to any building work that commenced before
that amendment.
Saving of occupation certificates
An occupation certificate issued in accordance with section
109H, as in force before it was amended by the 2003
amending Act, is taken to have been issued in accordance
with that section, as so amended.
Previously suspended, withdrawn or lapsed accreditation
Section 109ZF (2), as inserted by the 2003 amending Act,
extends to complaints that were made but not finally dealt
with before the date of assent to that Act and to a person
whose right to practise as an accredited certifier was
suspended, or whose accreditation was withdrawn or lapsed,
before that date.
Conflicts of interest
Section 109ZG (1AA), as inserted by the 2003 amending Act,
extends to matters arising before the commencement of that
subsection.
Investigation of certifying authorities
(1) Subject to subclause (2), Division 1B of Part 6, as inserted by
the 2003 amending Act, extends to matters arising before the
commencement of that Division.
(2) Section 109U, as in force immediately before its repeal by the
2003 amending Act, continues to apply to any investigation
that had commenced before the repeal of that section as if that
Act had not been enacted.
Proceedings for offences
Section 127 (5), as substituted by the 2003 amending Act,
does not apply to offences arising before the commencement
of that amendment.
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Schedule 1 Amendment of Environmental Planning and Assessment Act 1979
Improper influence with respect to conduct of accredited
certifier
Section 148A, as inserted by the 2003 amending Act, does not
apply to conduct occurring before the commencement of that
section.
Conditions of development consent
Clauses 98A and 98B of the Environmental Planning and
Assessment Regulation 2000, as inserted by the 2003
amending Act, do not apply to work that had been
commenced before the commencement of those clauses.
Conditions of complying development certificate
Clauses 136B and 136C of the Environmental Planning and
Assessment Regulation 2000, as inserted by the 2003
amending Act, do not apply to work that had been
commenced before the commencement of those clauses.
Time limits for accredited certifiers
The amendments to clauses 130, 138, 142, 151 and 160 of the
Environmental Planning and Assessment Regulation 2000
made by the 2003 amending Act do not apply to any
determination made under any of those clauses, or any
certificate issued under any of those clauses, before the
commencement of those amendments.
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Environmental Planning and Assessment Amendment (Quality of
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Schedule 2 Amendment of regulations
(Section 4)
2.1 Environmental Planning and Assessment Regulation 2000
[1] Clause 51 Rejection of development applications
Omit clause 51 (1). Insert instead:
(1) A consent authority may reject a development application
within 7 days after receiving it if:
(a) the application is illegible or unclear as to the
development consent sought, or
(b) the application does not contain any information, or is
not accompanied by any document, specified in Part 1
of Schedule 1.
[2] Part 6, Division 8A, heading
Insert before clause 98:
Division 8A Prescribed conditions of development
consent
[3] Clause 98 Compliance with Building Code of Australia and
insurance requirements under the Home Building Act 1989
Insert "before any building work authorised to be carried out by the
consent commences" after "is in force" in clause 98 (1) (b).
[4] Clauses 98A and 98B
Insert after clause 98:
98A Erection of signs
(1) For the purposes of section 80A (11) of the Act, the
requirements of subclauses (2) and (3) are prescribed as
conditions of a development consent for development that
involves any building work, subdivision work or demolition
work.
(2) A sign must be erected in a prominent position on any site on
which building work, subdivision work or demolition work is
being carried out:
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Environmental Planning and Assessment Amendment (Quality of
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Schedule 2 Amendment of regulations
(a) showing the name, address and telephone number of the
principal certifying authority for the work, and
(b) showing the name of the principal contractor (if any)
for any building work and a telephone number on which
that person may be contacted outside working hours,
and
(c) stating that unauthorised entry to the work site is
prohibited.
(3) Any such sign is to be maintained while the building work,
subdivision work or demolition work is being carried out, but
must be removed when the work has been completed.
(4) This clause does not apply in relation to building work,
subdivision work or demolition work that is carried out inside
an existing building that does not affect the external walls of
the building.
(5) This clause does not apply in relation to Crown building work
that is certified, in accordance with section 116G of the Act,
to comply with the technical provisions of the State's building
laws.
Note. Principal certifying authorities and principal contractors must also
ensure that signs required by this clause are erected and maintained
(see clause 227A which currently imposes a maximum penalty of
$1,100).
98B Notification of Home Building Act 1989 requirements
(1) For the purposes of section 80A (11) of the Act, the
requirements of this clause are prescribed as conditions of a
development consent for development that involves any
residential building work within the meaning of the Home
Building Act 1989.
(2) Residential building work within the meaning of the Home
Building Act 1989 must not be carried out unless the principal
certifying authority for the development to which the work
relates (not being the council) has given the council written
notice of the following information:
(a) in the case of work for which a principal contractor is
required to be appointed:
(i) the name and licence number of the principal
contractor, and
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Environmental Planning and Assessment Amendment (Quality of
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Amendment of regulations Schedule 2
(ii) the name of the insurer by which the work is
insured under Part 6 of that Act,
(b) in the case of work to be done by an owner-builder:
(i) the name of the owner-builder, and
(ii) if the owner-builder is required to hold an owner-
builder permit under that Act, the number of the
owner-builder permit.
(3) If arrangements for doing the residential building work are
changed while the work is in progress so that the information
notified under subclause (2) becomes out of date, further work
must not be carried out unless the principal certifying
authority for the development to which the work relates (not
being the council) has given the council written notice of the
updated information.
(4) This clause does not apply in relation to Crown building work
that is certified, in accordance with section 116G of the Act,
to comply with the technical provisions of the State's building
laws.
[5] Clause 100 Notice of determination--what is the form of the
notice?
Omit clause 100 (1) (g). Insert instead:
(g) if the development involves a building but does not
require a construction certificate for the development to
be carried out, the class of the building under the
Building Code of Australia,
[6] Clause 100 (3)
Insert after clause 100 (2):
(3) A notice of determination of a grant of development consent
must include a copy of any relevant plans endorsed by the
consent authority.
[7] Clause 103 Notice under section 81A of the Act of appointment of
principal certifying authority
Omit "(2) (b) (ii) or (4) (b) (ii)". Insert instead "(2) (b1) (i) or (4) (b1) (i)".
[8] Clause 103 (a)
Omit the paragraph.
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Environmental Planning and Assessment Amendment (Quality of
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Schedule 2 Amendment of regulations
[9] Clause 103 (e)
Insert ", and of the person by whom the principal certifying authority was
appointed" after "authority".
[10] Clause 103 (f) (iv)
Insert at the end of clause 103 (f) (iii):
and
(iv) a telephone number on which he or she may be
contacted for business purposes,
[11] Clause 103A
Insert after clause 103:
103A Notice under section 81A of the Act of critical stage
inspections
A notice given under section 81A (2) (b1) (ii) of the Act must
contain the following information:
(a) the name and accreditation number of the principal
certifying authority by whom the notice is given,
(b) a telephone number on which the principal certifying
authority can be contacted for business purposes,
(c) the registered numbers of the development consent and
of the construction certificate,
(d) a description of the work to be carried out,
(e) the address of the land at which the work is to be carried
out,
(f) a list of the critical stage inspections and other
inspections required to be carried out in respect of the
work.
[12] Clause 122 Notice of determination of application to modify
development consent
Insert after clause 122 (1):
(1A) A notice of determination of an application granted for the
modification of a development consent must include a copy of
any relevant plans endorsed by the consent authority.
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Environmental Planning and Assessment Amendment (Quality of
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[13] Clause 130 Procedure for determining application for complying
development certificate
Omit "7 days" from clause 130 (4). Insert instead "2 days".
[14] Clause 134 Form of complying development certificate
Insert after clause 134 (2):
(2A) A complying development certificate for any development
must include a copy of any relevant plans endorsed by the
consent authority.
[15] Clause 135 Notice under section 86 of the Act of appointment of
principal certifying authority
Omit "(1) (a) (ii) or (2) (a) (ii)". Insert instead "(1) (a1) (i) or (2) (a1)".
[16] Clause 135 (a)
Omit the paragraph.
[17] Clause 135 (e)
Insert ", and of the person by whom the principal certifying authority was
appointed" after "authority".
[18] Clause 135 (f) (iv)
Insert at the end of clause 135 (f) (iii):
and
(iv) a telephone number on which he or she may be
contacted for business purposes,
[19] Clause 135A
Insert after clause 135:
135A Notice under section 86 of the Act of critical stage inspections
A notice given under section 86 (1) (a1) (ii) of the Act must
contain the following information:
(a) the name and address of the principal certifying
authority by whom the notice is given,
(b) a telephone number on which the principal certifying
authority can be contacted for business purposes,
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Environmental Planning and Assessment Amendment (Quality of
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Schedule 2 Amendment of regulations
(c) the registered number of the complying development
certificate,
(d) a description of the work to be carried out,
(e) the address of the land at which the work is to be carried
out,
(f) a list of the critical stage inspections and other
inspections required to be carried out in respect of the
work.
[20] Part 7, Division 2A, heading
Insert after clause 136:
Division 2A Conditions of complying development
certificate
[21] Clause 136A
Renumber existing clause 133 as clause 136A, and transfer to Division 2A
of Part 7 after the heading to that Division (as inserted by item [20]).
[22] Clause 136A (as renumbered) Compliance with Building Code of
Australia and insurance requirements under the Home Building
Act 1989
Insert "and be in force before any building work authorised to be carried
out by the certificate commences" after "be entered into" in clause 136A
(1) (b).
[23] Clauses 136B and 136C
Insert after clause 136A (as transferred in accordance with item [21]):
136B Erection of signs
(1) A complying development certificate for development that
involves any building work, subdivision work or demolition
work must be issued subject to a condition that the
requirements of subclauses (2) and (3) are complied with.
(2) A sign must be erected in a prominent position on any site on
which building work, subdivision work or demolition work is
being carried out:
(a) showing the name, address and telephone number of the
principal certifying authority for the work, and
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Environmental Planning and Assessment Amendment (Quality of
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Amendment of regulations Schedule 2
(b) showing the name of the principal contractor (if any)
for any building work and a telephone number on which
that person may be contacted outside working hours,
and
(c) stating that unauthorised entry to the site is prohibited.
(3) Any such sign is to be maintained while the building work,
subdivision work or demolition work is being carried out, but
must be removed when the work has been completed.
(4) This clause does not apply in relation to building work,
subdivision work or demolition work that is carried out inside
an existing building, that does not affect the external walls of
the building.
(5) This clause does not apply in relation to Crown building work
that is certified, in accordance with section 116G of the Act,
to comply with the technical provisions of the State's building
laws.
Note. Principal certifying authorities and principal contractors must also
ensure that signs required by this clause are erected and maintained
(see clause 227A which currently imposes a maximum penalty of
$1,100).
136C Notification of Home Building Act 1989 requirements
(1) A complying development certificate for development that
involves any residential building work within the meaning of
the Home Building Act 1989 must be issued subject to a
condition that the work is carried out in accordance with the
requirements of this clause.
(2) Residential building work within the meaning of the Home
Building Act 1989 must not be carried out unless the principal
certifying authority for the development to which the work
relates (not being the council) has given the council written
notice of the following information:
(a) in the case of work for which a principal contractor is
required to be appointed:
(i) the name and licence number of the principal
contractor, and
(ii) the name of the insurer by which the work is
insured under Part 6 of that Act,
(b) in the case of work to be done by an owner-builder:
(i) the name of the owner-builder, and
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Environmental Planning and Assessment Amendment (Quality of
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Schedule 2 Amendment of regulations
(ii) if the owner-builder is required to hold an owner-
builder permit under that Act, the number of the
owner-builder permit.
(3) If arrangements for doing the residential building work are
changed while the work is in progress so that the information
notified under subclause (2) becomes out of date, further work
must not be carried out unless the principal certifying
authority for the development to which the work relates (not
being the council) has given the council written notice of the
updated information.
(4) This clause does not apply in relation to Crown building work
that is certified, in accordance with section 116G of the Act,
to comply with the technical provisions of the State's building
laws.
[24] Clause 138 Compliance certificates
Insert ", and formal particulars of title," after "address" in clause 138 (1)
(e).
[25] Clause 138 (3)
Omit "7 days". Insert instead "2 days".
[26] Clause 139A
Insert after clause 139:
139A Withdrawal of application for construction certificate
(1) An application for a construction certificate may be
withdrawn at any time prior to its determination by service on
the certifying authority to which it was made of a notice to
that effect signed by the applicant.
(2) The certifying authority may (but is not required to) refund to
the applicant the whole or any part of the application fee paid
in connection with an application that has been withdrawn.
[27] Clause 142 Procedure for determining application for
construction certificate
Omit "7 days" from clause 142 (2). Insert instead "2 days".
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Environmental Planning and Assessment Amendment (Quality of
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[28] Clause 147 Form of construction certificate
Insert after clause 147 (1) (e):
(f) the classification (in accordance with the Building Code
of Australia) of the building to which the certificate
relates.
[29] Clause 147 (1A)
Insert after clause 147 (1):
(1A) A construction certificate may indicate different
classifications for different parts of the same building.
[30] Clause 148 Modification of construction certificate
Insert after clause 148 (2):
(3) As soon as practicable after granting an application to modify
development in respect of which an application for a
construction certificate has previously been referred to the
Fire Commissioner under clause 144, but for which (in its
modified form) an application for a construction certificate
for a building would no longer be required to be so referred, a
certifying authority must notify the Fire Commissioner that
the building to which the construction certificate relates is no
longer a building to which clause 144 applies.
[31] Clause 151 Procedure for determining application for occupation
certificate
Omit "7 days" from clause 151 (2). Insert instead "2 days".
[32] Clause 156 Occupation and use of new buildings: section 109M (2)
Insert ", the construction certificate or complying development certificate
for which was issued before the commencement of Schedule 2.1 [32] to
the Environmental Planning and Assessment Amendment (Quality of
Construction) Act 2003" after "class 10 building" in clause 156 (1).
[33] Clause 160 Procedure for determining application for subdivision
certificate
Omit "7 days" from clause 160 (2). Insert instead "2 days".
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Schedule 2 Amendment of regulations
[34] Clause 162
Omit the clause. Insert instead:
162 Notice of replacement of principal certifying authority
(1) A principal certifying authority appointed to replace another
principal certifying authority must ensure that notice of the
appointment and of the approval of that appointment is given
to the consent authority (and, if the consent authority is not the
council, to the council) within 2 days of the appointment.
(2) Nothing in this clause requires any notice to be given to a
council that approved the new appointment.
[35] Clauses 162A and 162B
Insert after clause 162:
162A Critical stage inspections required by section 109E (3) (d)
(1) For the purposes of section 109E (3) (d) of the Act, the
occasions on which building work must be inspected are as set
out in this clause.
Note. These inspections are the critical stage inspections.
(2) Except as provided by subclause (3), the critical stage
inspections may be carried out by the principal certifying
authority or, if the principal certifying authority agrees, by
another certifying authority.
(3) The last critical stage inspection required to be carried out for
the class of building concerned must be carried out by the
principal certifying authority.
(4) In the case of a class 1 or 10 building, the development site
must be inspected:
(a) at the commencement of the building work, and
(b) after excavation for, and prior to the placement of, any
footings, and
(c) prior to pouring any in-situ reinforced concrete building
element, and
(d) prior to covering of the framework for any floor, wall,
roof or other building element, and
(e) prior to covering waterproofing in any wet areas, and
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Environmental Planning and Assessment Amendment (Quality of
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Amendment of regulations Schedule 2
(f) prior to covering any stormwater drainage connections,
and
(g) after the building work has been completed and prior to
any occupation certificate being issued in relation to the
building.
(5) In the case of a class 2, 3 or 4 building, the development site
must be inspected:
(a) at the commencement of the building work, and
(b) prior to covering of waterproofing in any wet areas, for
a minimum of 10% of rooms with wet areas within a
building, and
(c) prior to covering any stormwater drainage connections,
and
(d) after the building work has been completed and prior to
any occupation certificate being issued in relation to the
building.
(6) In the case of a class 5, 6, 7, 8 or 9 building, the development
site must be inspected:
(a) at the commencement of the building work, and
(b) prior to covering any stormwater drainage connections,
and
(c) after the building work has been completed and prior to
any occupation certificate being issued in relation to the
building.
162B Record of inspections conducted under section 109E (3)
(1) A principal certifying authority and each other certifying
authority must make a record of each critical stage inspection
carried out by the principal certifying authority or other
certifying authority.
(2) Any certifying authority who is required to make such a
record but is not the principal certifying authority for the work
concerned must forthwith provide a copy of the record to the
principal certifying authority for the work.
Note. Copies of these records must be kept for at least 15 years (see
clause 205).
(3) Each record of an inspection required by this clause must be
made as soon as practicable after the inspection is carried out.
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(4) The record must include details of:
(a) the registered number of the development application
and of the construction certificate or complying
development certificate, and
(b) the address of the property at which the inspection was
carried out, and
(c) the type of inspection, and
(d) the date on which it was carried out, and
(e) the name and accreditation number of the certifying
authority by whom the inspection was carried out, and
(f) whether or not the inspection was satisfactory in the
opinion of the certifying authority who carried it out.
[36] Clause 163
Omit the clause. Insert instead:
163 Notice to allow inspections
To allow a principal certifying authority or another certifying
authority time to carry out critical stage inspections or any
other inspections required by the principal certifying
authority, the principal contractor for a building site, or the
owner-builder, must notify the principal certifying authority
at least 48 hours before building work is commenced at the
site if a critical stage inspection is required before the
commencement of the work.
[37] Clause 170 What is a final fire safety certificate?
Insert "or on behalf of" before "the owner".
[38] Clause 175 What is an annual fire safety statement?
Insert "or on behalf of" before "the owner".
[39] Clause 200 Accreditation bodies' registers
Insert after clause 200 (2) (a):
(a1) a telephone number or telephone numbers for
contacting the person for business purposes,
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Environmental Planning and Assessment Amendment (Quality of
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Amendment of regulations Schedule 2
[40] Clause 201 Other documents to be kept by accreditation bodies
Omit "clause 205 (3)" from clause 201 (1) (e).
Insert instead "clause 205 (4)".
[41] Clause 202 Central register
Insert after clause 202 (2) (a):
(a1) a telephone number or telephone numbers for
contacting the person for business purposes,
[42] Clause 205 Record keeping by accredited certifiers
Insert after clause 205 (1) (f):
(g) any record of a critical stage inspection required to be
made by the accredited certifier,
(h) if the accredited certifier is a principal certifying
authority, any copy of a record of a critical stage
inspection provided to the principal certifying authority
by another certifying authority.
[43] Clause 205 (2)
Insert "or, in the case of a record of a critical stage inspection, from the
time of the inspection" after "issued".
[44] Part 13A
Insert after clause 227:
Part 13A Supplementary provisions for
development requiring consent
227A Signs on development sites
(1) This clause applies if there is a person who is the principal
certifying authority or the principal contractor for any
building work, subdivision work or demolition work
authorised to be carried out on a site by a development
consent or complying development certificate.
(2) Each such person must ensure that a rigid and durable sign
showing the person's identifying particulars so that they can
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Schedule 2 Amendment of regulations
be read easily by anyone in any public road or other public
place adjacent to the site:
(a) is erected in a prominent position on the site before the
commencement of the work, and
(b) is maintained on the site at all times while this clause
applies until the work has been carried out.
Maximum penalty: 10 penalty units.
(3) In this clause, the identifying particulars for a person means:
(a) the name, address and telephone number of the person,
and
(b) in the case of a principal contractor, a telephone number
on which the principal contractor may be contacted at
any time for business purposes.
(4) Nothing in this clause requires the erection of more than one
sign on a site or prevents the use of an appropriate sign that
has already been erected on a site.
Note. See clauses 98A and 136B which require such a sign on a site as
a condition of development consent or complying development
certificate.
[45] Schedule 1 Forms
Insert "if consent has already been granted for the proposed
development," at the end of clause 5 (e).
2.2 Environmental Planning and Assessment (Savings and
Transitional) Regulation 1998
Clause 51 Application of sections 93 and 732 to matters arising
under amended EP&A Act 1979
Omit the clause.
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