Complying development allows for a quick development consent for most dwelling houses in NSW. Approval for development and building consent is granted within 20 days.
On February 22nd, 2014 amendments to the State Environmental Planning Policy (Exempt and Complying Codes) 2008, also known as the Codes SEPP, have changed the development standards for residential dwellings. The development must comply with the standards listed in the Code.
Land-based exclusions: where lots are only partially affected by a land-based exclusion, complying development can take place on the part of the lot unaffected.
Development on heritage items: where heritage items are clearly mapped and described, complying development can take place on parts of the lot that are not the heritage item. Additionally, development that is enabled by the Codes SEPP and also identified in specific exemptions under the Heritage Act 1977 will be enabled on heritage items.
Suspension of covenants, agreements and instruments: covenants imposed by a council that require compliance with standards which are more stringent than those in the Codes SEPP will not apply to development approved under the Codes SEPP. However covenants imposed by a former owner of the land for specific amenity protection, for example views will continue to apply.
Easement protection: exclusions and development standards will prevent new buildings from being erected over registered easements.
Equivalent zones: modify the provisions for determining equivalent zones to use the zoning stated in any exhibited draft Standard Instrument Local Environmental Plan. Savings and transitional provisions for development under SEPP (Affordable Rental Housing) 2009 will mean that this new requirement for equivalent zones will also apply to any existing development application which has not been finally determined.
Exclusions and variations: a total of 16 requests from councils for local exclusions and variations have been included in the amendments to the Codes SEPP. These include requests specific to Bathurst, Bega, Holroyd, Lake Macquarie, Port Macquarie-Hastings, Singleton and Tamworth.
Requests from other councils are being addressed by changes to the development standards or terminology of the Codes SEPP that will apply across all local government areas.
Conditions of approval: conditions of approval for complying development under the Codes SEPP have been strengthened to minimise impacts on the environment and to prevent damage to adjoining areas during construction. Conditions applying under each complying development code have been reordered, standardised and are now located in separate schedules at the end of the SEPP.
CHANGES TO DEVELOPMENT STANDARDS
Floor area and basements (including basement garages): specific provisions allow for basements and will identify a basement as a storey. They will also be included in the calculation of maximum floor area allowed on a site, along with the floor area of the dwelling house, any detached studio and any secondary dwelling on the site.
Detached studios: under the General Housing Code these will be restricted to a maximum of 20m² or 35m² in floor area depending on lot size and may only be 3.6m in height where not within 900mm of a rear lane.
Tree removal and protection: trees up to 8m in height may be removed but only if for a new dwelling, otherwise the current 6m limit applies. New setback standards will require buildings to be located at least 3m from protected trees which are being retained on the lot. Additionally, new conditions will require tree protection measures to be implemented during construction in accordance with Australian Standards. Clearer references to the requirements under council’s Tree Preservation Orders are also included.
Balconies and privacy screens: the total area of balconies over 2m above ground level and within 6m of a boundary will be limited to 12m². Development standards will also limit the height of balconies within 6m of a boundary and require appropriate privacy screens. Standards have also been strengthened to require privacy screens for all windows with a sill height of less than 1.5m, except bedroom windows smaller than 2m² in area.
Earthworks: existing standards have been consolidated to enable a suitable level of excavation and associated structural support across the site. Requirements for drainage and protection of adjoining properties have also been strengthened. Retaining walls may be constructed up to 1m without requiring certification by a professional engineer, unless the retaining wall is less than 1m from the property boundary, in which case certification by an engineer is still required for retaining walls over 600mm.
Built to boundary setback standard: allow dwellings to be built to one side boundary for lots between 10m and 12.5m with a maximum 10m length for a wall on that boundary, and for boundary walls on other smaller built to boundary lots to be 20m or 50% the depth of the lot.
Development thresholds: minor change to the thresholds of development standards that are based on lot size and lot width. The outcome will be that only specific lot sizes/widths will be moved to the next level of the thresholds.
Secondary and Parallel road setbacks: providing a 3m setback for development on parallel roads and allowing outbuildings closer to the boundary of secondary and parallel roads.
Swimming pools: location restrictions introduced for swimming pools in draft heritage conservation areas, and pool pumps required to be housed in soundproofed enclosures.
CHANGES TO HOUSING ALTERATIONS CODE
The housing alterations code applies to all dwellings – including apartments, townhouses and villas.
Internal alterations: expanded to allow alterations to common areas of residential accommodation, including residential flat buildings.
External alterations: extended to all forms of residential accommodation with a restriction to the first three habitable storeys of the building unless the development is for the purposes of services and utilities. External alterations undertaken in bush fire prone land will require specific bush fire protection development standards.
IMPORTANT THINGS TO CONSIDER FOR 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 CONDITIONS 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:
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.
Bushfire Prone Land
If the development is on bushfire prone land a qualified bushfire consultant is required to determine the category of bush fire attack and will determine if the land is suitable for complying developement.
Protection of Trees
If a protected tree is required to be pruned (including roots) or removed a permit is required from Council prior to the approval of the CDC. (A protected tree is one that requires a permit for removal or pruning under a Council Tree Preservation Order.)
Flood Prone Land
If the development is on flood prone land Council or a suitably qualified consultant will need to certify the additional development standards that apply to your site. These may include: location of building, minimum habitable floor level and structural requirements.
Approval from council under the Roads Act 1993 is required for works within the road reserve. This includes any changes to driveways and footpaths. This approval is to 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).