Local Government Legal

Local Government Legal prepares a regular email newsletter with legal updates on relevant court judgements and a summary and analysis of legislative changes.

January 2014 – Exempt and Complying Development changes

Significant amendments have been made to the exempt and complying development system which commence on 22 February 2014. The amendments are summarised below.

The amendments to the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the Codes SEPP) have been made by the State Environmental Planning Policy (Exempt and Complying Development Codes) Amendment (Commercial and Industrial Development and Other Matters) 2013 (the Amending SEPP). The Environmental Planning and Assessment Regulation 2000 (EP&A Regulation) has also been amended by the Environmental Planning and Assessment Amendment (Complying Development and Fire Safety) Regulation 2013 (the Amending Regulation).

New Codes

Two new codes for complying development have been introduced in respect of commercial and industrial buildings, and a new fire safety code has been introduced.

  • Commercial and Industrial Alterations Code
    • Allows for a wide range of internal alterations to most existing commercial and industrial uses;
    • Change of use provisions allow new uses that are of similar or lesser intensity to the current use. Issues such as hours of operation and car parking are determined by the development consent for the current use and if not specified, appropriate standards are provided in the SEPP;
  • Commercial and Industrial (New Buildings and Additions) Code
    • allows for construction of new industrial buildings up to 20,000m2 and additions to existing industrial buildings up to 5,000m2 as complying development on industrial zoned land;
    • Allows additions to the rear of existing commercial premises up to 50% of the existing floor area but no more than 1,000m2 for retail uses and 2,500m2 for commercial offices and businesses;
    • Development that requires clearing of more than 1,000m2 of native vegetation will not be complying development
    • Maximum height limit and floor space ratios will apply, as specified in the council’s LEP or where not specified, a maximum height of 15m and FSR of 1:1;
  • Fire Safety Code
    • Enables certain fire safety systems to be approved as complying development more efficiently.

Conditions of approval for complying development have been revised and standardised and are specified in separate schedules for each type of development under each complying development code.

Repeal and amendment to other instruments

  • the SEPP (Temporary Structures) 2007 is renamed to the SEPP (Miscellaneous Consent Provisions) 2007 which applies to LEPs made under the Standard Instrument. It contains provisions for temporary structures, subdivision, demolition, certain changes of use and fire alarm link communication to be development permissible with consent;
  • development types and standards for temporary structures such as tents, marquees and booths for private and community events are transferred to the Codes SEPP;
  • exempt and complying provisions are consolidated by repealing and amending other SEPPs.

Amendments to existing complying development controls

Significant changes to the General and Rural Housing Codes as well as some changes to the Housing Alterations Code have been made, these include amendments addressing:

  • Privacy screens;
  • Removal of trees for new dwelling houses;
  • Excavation depths for basement or garages;
  • Build to boundary standards;
  • Detached studios in connection with a dwelling house;
  • The calculation of maximum floor area standards.

Amendments have also been made to allow works to other forms of residential accommodation such as residential flat buildings as complying development, such as works to internal alterations to common areas.

Other new types of complying development

  • Home businesses that manufacture food and meet the requirements of NSW Food Authority;
  • Repair, replacement and maintenance work to waterway structures;
  • Strata subdivision where there are several dwellings at ground level.

Exempt development

A new advertising and signage exempt development code has been made.

A new temporary uses and structures exempt development code has also been made. It includes:

  • existing development types and standards currently in the General Exempt Development Code, the SEPP (Major Development) 2005 and the SEPP (Temporary Structures) 2007;
  • flexibility for councils erecting temporary structures for events on land they manage;
  • new temporary development types including 24-hour trading for unlicensed retail premises in a business zone for 2 weeks preceding Christmas day and extended trading hours for licenced premises when special events take place and when extended hours are authorised under the Liquor Act 2007.

Changes to the General Exempt Development Code

More development types have been added, regarding:

  • outdoor dining on footpaths for food and drink premises and mobile food and drink outlets;
  • charity bins;
  • sculptures and artworks in specific locations under certain circumstances.

Standards for existing exempt development types has also been amended, regarding:

  • aerials, antennae and communication dishes;
  • changes of uses including from one type of place of worship to another;
  • the realignment of boundaries in residential zones;
  • provisions of fences, pathways and paving, hardstand spaces and earthworks;
  • ATMs, awning and security screens.

Changes to where exempt and complying development can be carried out

  • The amending SEPP introduces a clause suspending covenants, agreements and instruments that require compliance with standards more stringent than those in the SEPP. Covenants required by councils that seek to ensure development complies with its DCP controls no longer apply;
  • On a site with a heritage item that does not encompass the entire site, development may be undertaken on parts of site that are not identified as a heritage item on the State Heritage Register. In addition, some exemptions that apply under section 57 of the Heritage Act 1977 will also be allowed under the Codes SEPP.
  • The exclusion of exempt development being undertaken in environmentally sensitive areas has been removed though exclusions still apply for larger structures such as farm buildings.

Changes to the EP&A Regulation

The amendments to the EP&A Regulation to support the amendments to the Codes SEPP, including:

  • Neighbour notification – advice of a complying development application must be given to neighbours of each dwelling with a residential or rural zone and within 20m of the boundary of the proposed development site, 14 days prior to the approval of a CDC. This requirement applies to certain specified types of complying development, such as a new dwelling house and demolition, but not ‘residential release areas’;
  • Approval times – the time for determining a CDC the subject of the new pre-approval notification is now 20 days. Other CDCs remain subject to a 10 day approval time;
  • Notice of commencement of work – notification must be given to neighbours seven days prior to commencement of works under a CDC;
  • Section 149 planning certificates – The SEPP includes new complying development codes and now allows exempt and complying development to take place on lots affected by certain zoning and other land based restrictions as long as the development is not on the part of the lot affected by the exemption. A planning certificate will now need to include this information;
  • Development contributions – s94 or s94A developer contributions, imposed as a condition on a CDC, will be required for complying development where a council’s contribution plan specifies, payable prior to the commencement of works;
  • Payment of security – security bonds/damage deposits may be required for works under a CDC in a similar way to how they are applied under development consents, in certain circumstances. Such a condition can be imposed on a CDC only if a council identifies charges in their schedule of fees and charges published on its website (specified as a payment relevant under s136M of the Regulation);
  • Information to be lodged with applications – Depending on the new type of complying development, the Regulation specifies certain information be supplied with applications for a CDC, such as a Certificate of Title if development must be set back from an easement, a building upgrade report for some changes of use, a site contamination assessment in respect of industrial or commercial buildings and an RMS traffic impact certificate.

Note: This information is not to be relied upon as legal advice.

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