NSW’s Exempt and Complying
Development Codes
Overview & Update
Anthony Whealy, Partner
March 2010
sydney
melbourne
brisbane
perth
adelaide
cairns
port moresby
Background
• State Environmental Planning Policy (Exempt
and Complying Development Codes) 2008
(Codes SEPP) commenced on 27 February
2009, and has since been expanded.
• The SEPP aims to enable new single and 2
storey houses to be approved within 10 days,
on certain land.
• The SEPP also aims to enable 40 types of
minor approvals (alts and adds) to be approved
as ‘exempt’ or ‘complying’ development.
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• As at today’s date, the Codes SEPP contains
the following codes:
– General Exempt Development Code;
– General Housing Code;
– General Commercial and Industrial Code; and
– Housing Internal Alterations Code.
• The SEPP will be expanded further this year
(e.g. codes for ‘Small Lots’ and ‘Rural Lots’) –
Government has flagged that it will be
completed by 31 December 2010.
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• Transitional provisions apply in the meanwhile
for complying development. LEP and DCP
provisions can be applied until 31 Dec 2010.
• No transitional provisions for exempt
development. The Codes SEPP prevails over
LEPs and DCPs.
• SEPP generally applies State-wide, but not in
Warringah LGA.
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• The underlying purpose of the SEPP Codes is
to simplify the planning system particularly as it
relates to common or simple forms of residential
and now commercial and light industrial
development.
• The planning system was believed to have
become onerous, expensive and complicated.
• For example, prior to 1997, many dwellings
(about 60%) only needed a Building Approval.
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• Prior to the introduction of the Codes SEPP,
Councils were typically reluctant to use 'exempt
and complying development' widely - only 11%
of all development in NSW. Councils instead
require full DA assessment.
• Contrast with Victoria, where 60% of all
development is dealt with in this way (according
to DoP literature).
• The aim of the Government is to increase
exempt and complying development to form
50% of all development within 4 years.
• Recent statistics show that in 2008/2009,
6 Councils had more than 50% CDs.
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SEPP vs LEPs / DCPs
• Where LEPs or DCPs specify exempt or
complying development that are not the same
as in the SEPP, the LEP and DCP will continue
to apply.
• Instruments are taken to specify the same
development if they specify development for the
same purpose may be carried out on the same
land, even if there are differences in the
specifications or development standards for that
development.
• E.g. a “deck” is the same development even if
the size or its location varies in different
instruments.
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What development is exempt
development?
• Development that is specified in an exempt
development code that meets the standards for
that development and that complies with the
requirements.
• Exempt development may be carried out without
the need for development consent.
• It must however be of minimal environmental
impact, not located in a critical habitat or in a
wilderness area. Same applies for complying
development.
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• To be exempt, the development must:
– Meet the deemed-to-satisfy provisions of the
Building Code of Australia or if there are
none, be structurally adequate.
– Also, to be exempt, the development must be
installed in accordance with the
manufacturer’s specifications, if applicable.
– Must NOT be designated development.
– Must NOT be on land where there is an item
listed on the State Heritage Register.
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What is complying development?
• It is development that is specified in a complying
development code that meets the standards
specified for that development and that
complies with the requirements for complying
development.
• Approval for the carrying out of complying
development may be obtained by the issue of a
complying development certificate – no DA
required.
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• Development cannot be complying development
if it is on land that is a critical habitat, a
wilderness area, is designated development, is
on land that comprises an item of environmental
heritage under the State Heritage Register, the
development requires concurrence, or the
development is on land identified as
environmentally sensitive.
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• To be complying development the development
must:
– Be permissible with consent
– Meet the provisions of the BCA
– Not be not be carried out on:
• Land within a heritage conservation area or
draft area;
• Not be on bushfire prone land.
• Must not be carried out on land that is less
than the minimum lot size for the erection of a
dwelling house under an environmental planning
instrument applying to the land.
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Exempt and complying development
• If only a part of a lot is land that is affected by a
heritage item, then exempt or complying
development cannot be carried out on any part
of that lot.
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Complying development – change to
notification requirements
• Recent amendments were made so as to
‘discontinue’ the previous requirement that a
certifying authority was to provide written notice
of a complying development certificate to the
owner or occupier of any land within 40m of the
boundary of the subject site.
• This means local residents may not know of
new homes until construction commences.
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• If the proposed development does constitute
complying development under the Codes SEPP,
then applicants need to take their proposal to an
accredited certifier (or to a Council certifier).
• The certifier must determine whether the
proposal meets the Code’s development
standards.
• If so, then the certifier must issue a complying
development certificate within 10 days.
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• There are 41 types of exempt developments
ranging from access ramps to windmills.
• The recent amendments introduced 9 new
exempt development types to this category:
animal shelters, automatic teller machines,
bollards, change of premises, evaporative
cooling units, garbage storage enclosure, hard
stand spaces, hot water systems, signage.
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Exempt development – an example
• Balconies, decks, patios, pergoloas, terraces
and verandahs
– May be free standing or attached to the
ground floor level of a building, be roofed or
unroofed.
– Cannot be installed in or on or in relation to a
heritage item, draft heritage item or on land in
a foreshore area.
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– Must be for domestic purposes only.
– Must have an area of no more than 20m².
– Must not cause the total floor area of all such
structures on the lot to be more than 15% of
ground floor area of the dwelling.
– Must not have a wall higher than 1.4m.
– Must be located behind the building line of
any road frontage and be located at least
900mm from each lot boundary.
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– If metal is used, be constructed of low
reflective materials.
– Have a floor height of not more than 1m
above ground level (existing).
– If it is a roofed structure attached to a
dwelling, not extend above the roof gutter line
of the dwelling and have a roof not higher
than 3m.
– Must ensure that roofwater is disposed into
an existing stormwater system.
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– Must not interfere with the functioning of
existing drainage fixtures or flow paths.
– If it is located in bushfire prone land and is
less than 5m from a dwelling, be constructed
of non-combustible material, and
– If it is constructed or installed in a heritage
conservation area or a draft heritage
conservation area, be located behind the
building line of any road frontage.
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General Housing Code
• The General Housing Code specifies
development that is complying development.
• Such development includes:
– The erection of a new single storey or two
storey dwelling house on a lot that has an
area of at least 450 m² and is in Zone R1, R2,
R3 or R4.
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– Alterations or additions to an existing single
or two storey dwelling house or addition of a
second storey to an existing single storey
dwelling house on a lot that has an area of at
least 450 metres squared and is in Zones R1,
R2, R3, R4, R5, RU1, RU2, RY3, RU4 or
RU5, other than development that is
specified in the Housing Internal Alterations
Code.
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• The erection of a basement, either as part of a
new dwelling house or as an addition or
alteration to an existing dwelling house is not
included as development under the Code.
• The erection of a roof terrace on the topmost
roof is also excluded.
• The erection of ancillary development or alts
and adds on a lot that has an area of at least
450m² is specified in the Code.
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• The demolition or removal of an existing single
storey or two storey dwelling house or ancillary
development on a lot of at least 450m² is
specified in the Code.
• For the purpose of calculating the area of a lot,
the area of the access laneway is excluded if it
is a battle-axe lot.
• The General Housing Code details the
development standards that apply, such as lot
requirements, minimum site coverage,
maximum floor area, buildings heights,
setbacks, landscaped areas, car parking.
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• The General Housing Code lists the conditions
that automatically apply to complying
development certificates under the Code.
• These conditions address matters such as toilet
facilities, garbage, hours of construction, and
utility services.
• The Code provides that the person having the
benefit of the complying development certificate
must give at least 2 days’ notice in writing of the
intention to commence the works to the owner
or occupier of each dwelling that is situated
within 20m of the lot.
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Housing Internal Alterations Code
• As the title suggests, this Code permits internal
alterations to an existing dwelling or existing
ancillary development that is associated with a
dwelling, other than development that is the
erection or conversion of a basement to an
existing dwelling house.
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• Examples of alterations that would be covered
include:
– Enlarging a lounge room by converting a
bedroom;
– Removing a wall between a kitchen and a
lounge room to make an open plan kitchen; or
– Dividing a portion of a room to make a new
bedroom.
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• It is only the new works which need to comply
with the development standards (not the
existing dwelling).
• As this code relates only to internal alterations,
the land-based exemptions are less extensive
than those for the General Housing Code.
• Therefore this code can apply to, for example,
foreshore area, flood control lot, bushfire prone
land.
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General Commercial and Industrial
Code
• The General Commercial and Industrial Code
has largely been incorporated into the Codes
SEPP by making amendments that broaden its
provisions to include existing commercial and
industrial premises.
• The amendments introduced ‘commercial
offices’ (defined as office or retail premises).
• The Code also makes specific reference to
bulky goods premises, warehouse or distribution
centres and light industries.
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• Does not yet authorise new buildings.
• May do so in 2010.
• In summary, this new code enables:
– certain low-impact development and change
of use of certain retail, commercial and
industrial premises to proceed as exempt
development, and
– Certain internal and external building
alterations, and change of use for certain
retail, commercial and industrial premises to
proceed as complying development.
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• Examples of exempt development:
– Replacement of identification signage
commercial or industrial premises (the
replacement must be of an existing lawful
sign and can be no greater in size than the
original sign).
– Minor internal building alterations commercial
or industrial premises (eg replacement or
renovation of a doorway, wall, ceiling, or a
bathroom, shelving or racking (not higher than
2.7m), work stations or counters.
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– Minor external building alterations to
commercial and industrial premises (eg
painting, plastering, rendering and cladding,
the replacement of external windows, glazing
areas or doors, the repair or replacement of
non-structural walls and the installation of
security grills).
– The development standards include:
• Not affect the means of egress from the
building;
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• Not affect the fire resisting components; and
• Not change any opening in a wall or roof such
as a doorway, window or skylight.
• The Code also enables the following changes
of use to commercial and industrial premises to
be undertaken as exempt development:
– A type of business premises to another type
of business premises.
– Business premises to office premises.
– A type of office premises to another type of
office premises.
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– Office premises to business premises.
– A type of retail premises to another type of
retail premises.
– A bulky goods premises to another bulky
goods premises.
– A light industry to another light industry.
– A warehouse or distribution centre to another
warehouse or distribution centre.
– A light industry to a warehouse or distribution
centre.
– A warehouse or distribution centre to a light
industry.
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• The change of use examples listed previously
are only exempt development if:
– The current use is a lawful use and is not an
existing use right as defined under the Act.
– The new use is permissible in the land use
zone in which it is carried out.
– The new use is not for food and drink
premises, a funeral chapel or home, a
market, a beauty salon, restricted premises,
roadside stall, sex services premises, vehicle
sales or hire premises.
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General commercial and industrial
code – Complying development
• The Code also allows the following types of
developments to be complying development
under the Code:
– Internal alterations to bulky goods premises,
commercial premises, light industries, or
warehouse or distribution centres.
– Mechanical ventilation systems in bulky
goods premises, commercial premises, light
industries, warehouse or distribution centres.
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– Shop front and awning alterations to bulky
good premises and commercial premises.
– Skylights and roof windows to bulky goods
premises, commercial premises, light
industries, warehouse or distribution centres.
• Strict development standards must be satisfied
before a certifying authority may issue a
complying development certificate.
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• Under the Code, the following changes of use of
commercial and industrial premises are also
complying development:
– A bulky goods premises to another bulky
good premises.
– A type of commercial premises to another
type of commercial premises.
– A light industry to another light industry.
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– A warehouse or distribution centre to another
warehouse or distribution centre.
– A light industry to a warehouse or distribution
centre.
– A warehouse or distribution centre to a light
industry.
– A light industry to an ancillary office.
– A warehouse or distribution centre to an
ancillary office.
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All complying development
• In addition to the requirements set out in the
Code, adjoining owner’s property rights, the
common law and other legislative requirements
for approvals, licences, permits and authorities
continue to apply, eg: the EP&A Act, the
Regulation, various SEPPs, PO&EO Act, the
Roads Act.
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Some comments
• Some concern has been raised that the Codes
SEPP will lead to ‘Project Home’ approach in
order to avoid Das – any comments?
• Criticism that neighbours miss out.
• No judgments on any of the provisions have
been delivered as yet.
• Is it too complicated?
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