NSWs Exempt and Complying Development Codes Overview Update

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. gadens. com. au

• 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. gadens. com. au

• 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. gadens. com. au

• 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. gadens. com. au

• 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 Do. P 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. gadens. com. au

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. gadens. com. au

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. gadens. com. au

• 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. gadens. com. au

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. gadens. com. au

• 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. gadens. com. au

• 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. gadens. com. au

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. gadens. com. au

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 40 m of the boundary of the subject site. • This means local residents may not know of new homes until construction commences. gadens. com. au

• 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. gadens. com. au

• 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. gadens. com. au

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. gadens. com. au

– Must be for domestic purposes only. – Must have an area of no more than 20 m². – 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. 4 m. – Must be located behind the building line of any road frontage and be located at least 900 mm from each lot boundary. gadens. com. au

– If metal is used, be constructed of low reflective materials. – Have a floor height of not more than 1 m 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 3 m. – Must ensure that roofwater is disposed into an existing stormwater system. gadens. com. au

– Must not interfere with the functioning of existing drainage fixtures or flow paths. – If it is located in bushfire prone land is less than 5 m 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. gadens. com. au

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 R 1, R 2, R 3 or R 4. gadens. com. au

– 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 R 1, R 2, R 3, R 4, R 5, RU 1, RU 2, RY 3, RU 4 or RU 5, other than development that is specified in the Housing Internal Alterations Code. gadens. com. au

• 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 450 m² is specified in the Code. gadens. com. au

• The demolition or removal of an existing single storey or two storey dwelling house or ancillary development on a lot of at least 450 m² 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. gadens. com. au

• 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 20 m of the lot. gadens. com. au

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. gadens. com. au

• 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. gadens. com. au

• 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. gadens. com. au

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. gadens. com. au

• 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. gadens. com. au

• 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. 7 m), work stations or counters. gadens. com. au

– 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; gadens. com. au

• 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. gadens. com. au

– 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. gadens. com. au

• 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. gadens. com. au

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. gadens. com. au

– 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. gadens. com. au

• 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. gadens. com. au

– 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. gadens. com. au

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. gadens. com. au

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? gadens. com. au