Expanded categories of exempt and complying development
20 January 2014
More development in NSW is to be code assessed or exempt from requiring approval, as the categories of exempt and complying development have been expanded through amendments to the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008. The major area of change is to commercial and industrial developments - a change which is welcomed as approval timeframes are significantly reduced.
A number of consequential amendments have also been made to the Environmental Planning and Assessment Regulation 2000 (NSW) which require neighbour notification and impose new obligations on certifiers to be satisfied that all conditions have been met prior to work commencing.
The changes come into force on 22 February 2014.
For the past two years, the NSW Government has consulted a range of stakeholders regarding amendments to the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP). The rationale behind the amendments is to implement some of the Government’s goals outlined in the NSW 2021 Plan, specifically Goal 4, which is to “reduce red tape” by, for example, increasing the number of developments that are code assessed rather than merit assessed and therefore expanding the types of development covered as complying development. These amendments were also identified as being required as a precursor to the broader changes proposed for the NSW planning system.
The amendments introduce:
- two new Complying Development Codes including for new commercial and industrial buildings up to 20,000m², additions and alterations;
- two additional categories of exempt development for advertising and signage, and temporary uses and structures;
- a variety of changes to the existing General Exempt Development Code and Housing Codes;
- a new Fire Safety Code which will facilitate upgrade works to hydraulic fire safety systems;
- neighbour notification requirements for proposed complying development in residential and rural zones; and
- obligations for private certifiers and councils to ensure that they are satisfied that any relevant preconditions have been satisfied prior to work commencing.
New Codes for commercial and industrial development
There are two new Parts in the Codes SEPP which broaden the scope of complying commercial and industrial development:
- New Part 5 Commercial and Industrial Alterations Code, which replaces the existing Part 5 of the Codes SEPP; and
- New Part 5A Commercial and Industrial (New Buildings and Additions) Code, which introduces a new category of complying development.
As a result, the following types of development are complying development:
- New industrial buildings (excluding heavy industry) or warehouse or distribution centres with a gross floor area up to 20,000m² (Part 5A of the Codes SEPP);
- Additions and external alterations to existing commercial and industrial buildings (excluding heavy industry), warehouse and distribution centres (Part 5A of the Codes SEPP). These include:
- For industrial buildings, the total gross floor area of the building as altered is restricted to not more than 5000m² if the existing building has a gross floor area of 5000m² or less. Otherwise, if the existing building has a gross floor area that is greater than 5000m², the alteration or addition must not increase the gross floor area by more than 5000m² ie. existing gross floor area plus a maximum additional 5000m².
- If the development is for the purpose of an ancillary office or industrial retail outlet, the floor area of this addition must not be more than 20% of the total gross floor area.
- For additions to the rear of existing commercial premises, the Code allows for additions up to a maximum of 1000m² or 50% of the gross floor area, whichever is the lesser, for retail use purposes. For additions of any other commercial use, the gross floor area of the additions must not exceed 2,500m² or 50% of the gross floor area, whichever is the lesser.
- Internal alterations, change of use of premises and other miscellaneous developments to an expanded variety of types of buildings (Part 5 of the Codes SEPP). In particular, these changes facilitate broader change of uses compared to the old Codes SEPP. For example, use of a building as a warehouse or distribution centre can be changed to another warehouse or distribution centre, neighbourhood shop, kiosk, wholesale supplies use, business premises, office premises, light industry, general industry, packaging industry or industrial retail outlet.
New buildings and additions will still need to comply with the setback, height limits, FSR and other building requirements specified in the applicable Local Environmental Plan and the Codes SEPP.
The time limit for determining an application for a complying development certificate for these proposed developments remains at 10 days (although it is noted that the average actual determination time is 18 days).
Dwelling houses and ancillary development
There are a number of changes that have been made to the General Housing Code (Part 3 of the Codes SEPP), Rural Housing Code (Part 3A of the Codes SEPP) and Housing Alterations Code (Part 4 of the Codes SEPP). These include:
- amended built to boundary standards to allow dwellings to be built to one side boundary for lots between 10m and 12.5m (compared to the current standard which only allows this for lots between 8m and 10m);
- excavation to a maximum depth of 3m for a basement or basement garage which will be counted as an additional storey;
- new development standards for improved privacy protection such as by requiring privacy screens on the edge of balconies and for windows where they are close to adjoining property boundaries at certain heights;
- removal of trees up to 8m in height that are not on the significant tree register and subject to new protection measures for the remaining trees during construction;
- detached studios will be allowed in connection with a dwelling house up to a maximum size of 35m² depending on the original lot size;
- allowance for additional types of work as complying development in connection with other forms of residential accommodation, such as, internal alterations to common areas of residential buildings, alterations for the provision of services and utilities, and minor external alterations; and
- strata subdivision of certain developments where there is multi dwelling housing is now complying development.
Important things to consider for complying development and conditions that may be imposed
Complying development Codes trump conditions of consent
- The complying development Codes will in some instances trump conditions of existing development consents, however this must be examined on a case by case basis. For example, if you were wanting to combine tenancies then this proposed development may be viewed as complying development, despite any conflicting conditions of an existing development consent.
New neighbour notification requirements
- There are two new neighbour notification requirements for complying development in residential and rural zones (excluding residential release areas):
1) The certifying authority must provide notification of a complying development application, at least 14 days prior to its approval, to the occupier of each dwelling lot that has a boundary within 20m of the development;
2) The person having the benefit of the issued complying development certificate must give at least 7 days notice of the intention to commence construction work to the occupier of each dwelling lot that has a boundary within 20m of the development.
The notification requirements are advisory only - neighbours will not be able to lodge objections to the complying development certificate. The time limit for determining applications of this sort for a complying development certificate has been extended to 20 days.
- Conditions may be imposed requiring payment of s94 or s94A development contributions prior to commencing any work, and/or to pay a security amount for new buildings or additions with an estimated development cost of $25,000 or more and that are on land adjacent to a public road.
Increased protection for adjoining properties and structures
- Amendments to the EPA Regulation have extended protection afforded to adjoining properties from protection of “buildings” to incorporate protection and support of adjoining buildings, structures or works, including any such structure within an adjoining road or rail corridor.
- New clause 136N of the EPA Regulation imposes a duty on the Principal Certifying Authority to be satisfied that any preconditions in relation to the development work have been met before work commences. The importance of this duty was highlighted in the case of Bankstown v Bennett & Anor  NSWLEC 38 where the Land and Environment Court found that the private certifier acted beyond his power in issuing the complying development certificate and the certificate was therefore declared invalid by the court.
Supporting documents to be lodged and associated conditions that may be imposed
When applying for a complying development certificate, there are a number of new supporting documents that may be required to be lodged with the application, depending on the type of proposed development. These documents include:
Building Upgrade Report
- A building upgrade report from an independent accredited certifier for change of use, additions or alterations to buildings erected prior to 1 January 1993 and that involve a development area greater than 500m².
Site Contamination Assessment
- For new industrial buildings or additions to existing commercial or industrial buildings, a report by a qualified contamination expert on the contamination status of the land, being that the land is either suitable for the development, or that the land will be suitable for development if certain remediation work is carried out. Where remediation work is required to be carried out, the complying development certificate must be issued subject to conditions stating that this requirement must be met.
Traffic Impact Certificate
- For new industrial buildings or additions to an industrial building with a total gross floor area of 5000m² or more, and that has pedestrian or vehicular access to a classified road or is within 90m of the classified road, a certificate from Roads and Maritime Services.
Protection of Easements
- A Certificate of Title will need to be lodged if a development standard requires that the development must be set back from an easement. If there is an easement on the lot, a Title Diagram of the easement must be submitted with the application.
Additionally, the Codes SEPP has been amended to standardise conditions of approval for complying development, to minimise impacts on the environment as well as prevent damage to adjoining sites during construction (new Schedules 7-10 of the Codes SEPP).
It remains the case that there is no right of appeal against the determination of, or a failure or refusal to determine, an application for a complying development certificate (s85A(10) of the Environmental Planning and Assessment Act 1979 (NSW)).
What types of development are now Exempt Development?
Subject to meeting specified requirements, new categories of exempt development include:
- Advertising, business and building identification signage (up to three business identification signs for a commercial building with one tenant and no more than six signs for any other building);
- Temporary uses and structures such as marquees for events (applicable for residential and commercial use);
- Temporary extension of unlicensed retail premises’ trading hours leading up to Christmas (only in business zones); and
- Extended trading hours for licensed premises but only when special events take place and subject to these extended hours being authorised under the Liquor Act 2007.
There are also changes to the General Exempt Development Code through the addition of more development types which include:
- outdoor dining on footpaths for food and drink premises and mobile food and drink premises. However, authority is still required for this activity from the council as the relevant roads authority;
- charity bins operated by an authorised entity; and
- sculptures and artworks in specific locations as long as they have approval from the owner under the Roads Act 1993 and meet certain height restrictions, depending on the zone.
Some existing exempt development standards have been relaxed which include:
- expanded categories of changes of use;
- the realignment of boundaries in residential areas to a maximum of 10%;
- provisions for fences, pathways and paving, hardstand spaces and earthworks to tighten up drainage provisions and protection of adjoining sites;
- consolidated standards for aerials, antennae and communication dishes; and
- standards for ATMs, awning and security fences.
Implications and Commencement
The amendments will commence on 22 February 2014. Developers and private certifiers therefore have some time to get acquainted with the new provisions before they will commence and become enforceable. The expansion of the categories of exempt and complying development as part of the State Government’s ongoing planning reforms is to be applauded. The changes outlined above cut back approval timeframes, costs and unnecessary red tape.
Additional information on the changes can be obtained from the Department of Planning and Infrastructure’s website here.
 NSW Government, NSW 2021: A Plan to Make NSW Number One, Goal 4, page 12.
 NSW Department of Planning and Infrastructure, Better Regulation Statement for the proposed State Environmental Planning Policy (Exempt and Complying Development Codes) Amendment, page 8.
The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.