By Aaron Gadiel, Partner

The NSW Government has made a long list of changes to exempt and complying development rules — with immediate effect last week (29 January 2021).  Some of the changes will reduce the scope for exempt and complying development — meaning more development applications for some.

The changes are set out in the State Environmental Planning Policy (Exempt and Complying Development Codes) Amendment (Miscellaneous) 2021. This legal document amended the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the SEPP). At the time of writing this article the official online copy of the SEPP had not (yet) been updated to reflect the changes. This is likely to happen soon.

Most of the individual changes are a ‘tidying up’ of statutory provisions (such as updating references to Australian standards). However, some changes will reduce access to exempt and complying development. A smaller number of changes will improve access to complying development.

Little thought appears to have been given to the many people who would have been in the midst of planning their development when the changes were published (without fanfare) last week.

Property developers and large landowners

Some of the changes to the Commercial and Industrial Alterations Code (for complying development) may be of interest to property developers and large landowners.

These include the following:

• The ‘first use of premises’ stream is no longer applied to ‘recreational facilities (indoor)’ eg, gyms, indoor sports venues, etc.
• The construction of storage premises (other than for the storage of data and related information technology hardware) can now be complying development in certain circumstances.
• Local council development control plans now override complying development provisions for industrial buildings in relation to setbacks.
• There are additional requirements for sun shading devices, screens or canopies in some new industrial buildings.
• There has been a relaxation of landscaping requirements for development that alters existing industrial buildings.
• Development control plans will now —  in relation to landscaping — override complying development provisions for altered commercial premises.
• There is a new privacy screen requirement for some windows in altered commercial premises.
• There is a new complying development minimum height requirement for projecting signs (if they are either a ‘business identification sign’ or a ‘building identification sign’).

The Demolition Code for complying development no longer applies to dwellings generally, but is now limited (in this regard) to ‘dwelling houses’ (ie freestanding dwellings) and ‘secondary dwellings’. This removes dual occupancies, residential flat buildings, some boarding houses, etc from the Demolition Code.

For complying development, there are new requirements to cease work under the Demolition Code, the Housing Code, the Rural Housing Code, the Greenfield Housing Code, the Inland Code, the Commercial and Industrial Alterations Code, the Commercial and Industrial (New Buildings and Additions) Code and the Container Recycling Facilities Code.

The new obligation to stop work arises if — during the carrying out of works — a person knows (or should reasonably know) that the land is contaminated. There is no express requirement that any contamination be significant. There is no provision allowing the resumption of work as complying development. This will likely mean that (to complete the works) a development application will need to be lodged and development consent obtained.

For complying development — under the Demolition Code — there is a new requirement that any fill brought onto the site contain only virgin excavated natural material.

‘Mum and dad’ property owners and small business

Other changes may frustrate some ‘mum and dad’ property owners and small businesses seeking to avoid the complexities of a full-blown development application process.

Reductions in the scope of exempt and complying development include the following:

• There are new rear setback requirements under the Low Rise Housing Diversity Code for ‘multi dwelling housing (terraces)’ when the building is more than 8.5 metres in height (up to 9 metres).
• Carports will now only be exempt development if they are no higher than three metres above ground level. (Before, if the carport was attached to an existing single storey dwelling, it could be higher than three metres — so long as it was not higher than the roof gutter line).
• Swimming pools are no longer complying development if they are not setback from a secondary street (at least) in line with a dwelling house.
• There are new requirements for air-conditioning units before they can be exempt development.
• Where attic conversions are complying development, side dormer windows will be subject to a new four square metre area restriction.
• There are new requirements for the installation of workstations and counters within a building before they can be exempt development.
• For rural housing that is to be complying development, there is a new requirement for principal private open space in the ‘R5 Large Lot Residential’ zone.

However, there are some measures to widen the scope of some exempt and complying development:

• There is now a limited ability to replace existing decks (if not higher than one metre above the ground) without meeting some exempt development requirements for new decks.
• The exclusion from fill height requirements (for some complying development) has been widened beyond a building footprint — the relevant exclusions also now include fill contained by a drop edge beam (a vertical concrete slab constructed at the edge of a horizontal concrete slab).
• There are reduced landscaping requirements (behind the building line) for some complying development under the Low Rise Housing Diversity Code.
• There is more flexibility for the location of a swimming pool under the Low Rise Housing Diversity Code (where there is a secondary road).

The bottom line

It is odd that so many changes to the SEPP would commence immediately — on official publication — without a delayed implementation period.

Little thought appears to have been given to the many people who will be in the advanced stage of planning/implementing works (and may be caught in mid-stream).

Excluding a wide range of dwellings from the Demolition Code — and allowing local council development control plans to override provisions in the Commercial and Industrial Alterations Code — seems to be contrary to the ‘cutting red tape’ rhetoric.

Requiring work to cease when contamination is discovered — without any mechanism for the resumption of work as complying development — seems to be an unnecessary new risk for any complying development project.

Anyone who feels that they may be affected by these new rules should examine the SEPP once the official online copy has been updated (and obtain professional advice specific to their situation).