By Aaron Gadiel, Partner
From 30 July 2025, developers in NSW will be able to obtain complying development certificates under the new Pattern Book Development Code.
The development types that can benefit from this new regime are:
It can also potentially include ancillary development to the above, such as canopies, shade structures decks, patios, pergolas, terraces, driveways, hard stand space, garages, above ground rain water tanks, retaining walls, sheds, etc.
The article highlights (and summarises) some key features of the new regime that may be of interest to property developers. It does not address all aspects of the new regime. The article is not a replacement for legal advice (generally or in relation to a particular site).
The new regime is being implemented via amendments to:
The Pattern Book Development Code is set out as a new ‘Part 3BA’ of the Exempt and Complying Development SEPP.
Securing a ‘complying development certificate’ is an alternative to obtaining a development consent from a local council and a subsequent construction certificate.
A complying development certificate is issued by a registered certifier (and can also be issued by a local council). Once issued, it authorises the carrying out of the development in accordance with its conditions.
Until now, complying development certificates have been available under Low Rise Housing Diversity Code for the dual occupancies, manor houses and multi dwelling housing (where the homes face the street as terraces). However, the take-up rate under this code has been limited.
The Pattern Book Development Code is built around development standards, location requirements, technical drawing sets and technical information set out in eight distinct ‘patterns’ prepared by different architecture firms.
The NSW Government says that the initiative is designed to make the housing system fairer by:
According to the NSW Government, this reform is merely the first stage of its pattern book initiative. The ‘mid-rise pattern book’ will apparently include apartment designs for buildings ranging from 3 to 6 storeys and will launch in late 2025. The Government says that the low-rise designs are being released first, as the mid-rise pattern book requires further development due to its greater complexity. The mid-rise housing types that are apparently intended to be included in a later pattern book are:
The changes do not make development permissible in any areas where it is not already permissible. Any development relaying on the code must be permissible, with consent, under an environmental planning instrument applying to the land.
There are eight patterns that are enshrined in the new Exempt and Complying Development SEPP provisions.
For dual occupancies there are two patterns available:
For manor houses there is one pattern available: ‘Manor Homes 01 by Studio Johnston’ (four apartments).
For multi dwelling housing that is not in the form of a terrace (four homes arranged side-by-side, which run perpendicular to the street) there is one pattern available: ‘Row Homes 01 by SAHA’.
For ‘multi dwelling housing (terraces)’ there are four patterns available:
The last of the above designs can include a secondary dwelling (a ‘granny flat’).
Development is only complying development if it is to be carried out in accordance with:
set out in the relevant pattern.
However, these are not the only preconditions that must be met before a complying development certificate is able to be issued.
The patterns are available for purchase from the NSW Government.
At the time of writing this article the patterns books were not available for Mills Oakley to review.
This means that we have not had an opportunity to consider how easy — or how difficult — it will be to satisfy the development standards, location requirements, technical drawing sets and technical information in each pattern.
The new regime only applies in land that is zoned:
Oddly, this excludes those ‘MU1 Mixed Use’ zones which permit multi dwelling housing. For example, multi dwelling housing is permissible in the MU1 zones in:
It also excludes ‘E1 Local Centre’ zones which permit multi dwelling housing. For example, multi dwelling housing is permissible in the E1 zones in:
The new regime does not apply unless the lot size satisfies the following:
These minimums do not apply in the ‘low and mid rise housing area’ established by Chapter 6 of the State Environmental Planning Policy (Housing) 2021.
The new Pattern Book Development Code allows Torrens and strata subdivision to be obtained in the same complying development certificate that approved the carrying out of the building.
This may include subdivision of a dual occupancy (into two lots) or multi dwelling housing (one lot for each dwelling).
However, you should not overlook the fact that a subdivision proposed to be approved under a complying development certificate must still be permissible with consent under an environmental planning instrument that applies to the land.
The new regime does not apply unless ‘the lot’ will not have lawful access to a public road at the completion of the development.
Relevant here is the existing requirement that, before any complying development certificate is issued, a proponent must have written consent from the relevant roads authority under ‘section 138’ of the Roads Act 1993 for the building of any kerb, crossover or driveway. The roads authority is normally the local council.
This is a potential point of obstruction by local councils to proposals that are relying on the Pattern Book Development Code. There is no direct appeal right to the Land and Environment Court arising from the failure of a local council to give a consent under the Roads Act 1993. When council refuses to grant such a consent, a proponent may then need to lodge a development application (where the Roads Act 1993 consent could be granted by the Land and Environment Court as an ancillary matter, if the development application is appealed to it).
More generally, where there are works required in the road reserve to connect water or sewer services, these will also require a consent under the Roads Act 1993.
The following development is excluded from the Pattern Book Development Code:
The blanket exclusion on bushfire prone land and ‘flood control lots’ is a more conservative position than applies in the Low Rise Housing Diversity Code. That code can apply to such land, provided some additional safeguards are met.
The blanket exclusion of a building over registered easements is unnecessarily broad, given that some easements might permit buildings to be erected on them. For example, an easement that is for subsurface pipes only.
There is also a specific exclusion for dual occupancy development in the ‘R2 Low Density Residential’ zone if the development is only permissible because of Chapter 6 (‘Low and mid rise housing’ of the State Environmental Planning Policy (Housing) 2021. Such development cannot be the subject of a complying development certificate. A development application would need to be lodged.
Aside from the exclusions mentioned above, the Pattern Book Development Code is subject to the standard exclusions for complying development generally. These exclusions are complex to work through — and would need to be checked for every single development proposal.
Notably, one of the existing exclusions is land within a heritage conservation area (other than for certain types of ancillary development). This exclusion applies to the Pattern Book Development Code.
There also long-standing exclusions for certain complying development under schedule 5 of the Exempt and Complying Development SEPP. These exclusions have been extended to the new Pattern Book Development Code. These relate to certain mapped land in the following local government areas (or former local government areas):
It is surprising that the Government seems content to maintain all of these exclusions, given its new ‘pro-housing’ priorities.
Some sites will not benefit from the Pattern Book Development Code due to the extent of earthworks that would be required.
Excavation under the Pattern Book Development Code must not exceed a maximum depth, measured from ‘ground level (existing)’:
However, excavation for the purposes of a ‘pier in a pier’ and beam foundation may exceed these maximum depths if a professional engineer has certified the depth of the excavation.
Having said that, the excavation must not exceed a maximum depth, measured from ‘ground level (existing)’, of 1 metre if:
(With regard to acid sulfate soils, complying development cannot be caried out at all on land identified as class 1 or class 2 on an ‘Acid Sulfate Soils Map’.)
Before an excavation exceeding a maximum depth, measured from ‘ground level (existing)’ of 1 metre is carried out on a lot a geotechnical investigation report for the lot must be obtained. For the development to proceed, the report must show either that:
Fill must not exceed a maximum height, measured from ‘ground level (existing)’ of:
However, the height of fill is not limited if the fill is contained:
Fill that is higher than 150mm above ‘ground level (existing)’ and is not contained wholly within the footprint of a building or certain ancillary development, is limited to 50 per cent of the landscaped area of the lot.
Support for earthworks more than 600mm above or below ‘ground level (existing)’ must take the form of a retaining wall or other structural support that:
If:
a landscaped area with a minimum depth of 600mm must be provided in front of the wall on the low side.
It should be appreciated that for sites that are already the subject of excavation (for example, for the basement of an existing building that would be demolished), the ‘ground level (existing)’ is that excavated level (not the natural or historical ground level). For some sites this may present a problem in relation to the above filling controls (and may prevent the issue of a complying development certificate).
All stormwater must be directed by a gravity fed or charged system to:
A wall constructed within 900mm of a lot boundary must be built in accordance with the support method proposed by the professional engineer’s report provided with the application for the complying development certificate.
A proponent will not need to obtain a tree removal permit or development consent to remove or prune a tree or other vegetation on the lot if:
These provisions are likely to prompt some local councils to revise their register of significant trees. There are few practical limits on the trees that a local council may include in this register.
Development must be at least 3 metres from each ‘protected tree’ on the lot and any adjacent lot, measured from the base of the trunk of the tree.
(A ‘protected tree’ is a tree that requires a separate permit or development consent for pruning or removal.)
Having said this, the following development can be located within 3 metres of a ‘protected tree’ if works do not involve excavation or fill of more than 150mm below or above ‘ground level (existing)’ —
A complying development certificate application must contain a written statement from an ‘accredited designer’ stating (among other things) that the proposed development will comply with the development standards, location requirements, technical drawing set and technical information specified in the relevant pattern.
However, a proponent (and a registered certifier) should appreciate, that this statement is not conclusive. If a complying development certificate is wrongly issued in reliance on this statement, it may still be set aside by the Land and Environment Court.
An ‘accredited designer’ is either:
The determination of an application by the council or registered certifier must be completed within 10 days (or such longer period as may be agreed to by the applicant) after lodgement of the application.
However, a complying development certificate cannot be issued until at least 7 days after the certifier has given written notice to—
In short, it means that there is 7-10 day window for the certificate to be issued (unless the applicant agrees to a longer timeframe).
Objectors and councils can seek to have complying development certificates set aside in the Land and Environment Court.
If proceedings are commenced within three months of the issue of a certificate, the Court will be able to determine for itself whether or not a complying development certificate should have been issued.
The opinion that the certifier formed when issuing the certificate will not carry any weight.
This change means that complying development certificates carry some elevated legal risks, when compared to a development consent.
Complying development certificates can also be challenged after three months, but on more limited grounds (and generally subject to the Court agreeing to a late challenge).
These measures are a positive step forward.
However, the scheme is not as wide-ranging as it could have been, and there are many exclusions from its operation.
Further, there will be many mandatory requirements that must be met before a complying development certificate can be lawfully issued. If a certifier makes an error in relation to just one of these matters, the complying development certificate can be readily set aside by the Land and Environment Court in proceedings commenced within three months of the issue of the certificate.
Mills Oakley has not yet been able to obtain a copy of each of the eight patterns to review. There is potential for these patterns to impose development standards (and the like) that may, for some sites, be difficult to satisfy.
A complying development certificate is generally more vulnerable to a local council or objector’s legal challenge than a development consent.
If you would like further information or have any queries regarding other matters, please do not hesitate to contact:
