helping practitioners understand changes to exempt and complying development

Changes to Exempt and Complying Development

Information Sessions for Council & Industry Practitioners

January 2014 – February 2014

Today’s presenters

Marcus Ray – Executive Director, Planning Reform, General Counsel Shayne Watson – Director, Assessment Systems Michael Teoh – Senior Planner, Exempt & Complying DevelopmentGlenda Dunn – Senior Planner, Exempt & Complying DevelopmentYin Ye – Policy Officer, Exempt & Complying Development

Jonathon Lynch – Team Leader Accreditation, Building Professionals Board Michael Said – Senior Building Codes Officer, Building Systems UnitGordon Bradford – Project Officer, E-planning

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Today’s program

• New planning system • Changes to key requirements - Questions • Exempt development - Questions • New requirements for complying development

Information to be lodged with a CDC - Questions Neighbour notification - Questions Conditions of approval - Questions

Break•Building Professionals Board• Commercial and industrial development - Questions • Changes to the housing codes - Questions • Other complying development codes - Questions • E-planning

Questions

New Planning System

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New Planning System

Development type Determined by

Exempt development None required

Complying development Councils & private certifiers

Local development Councils & regional panels

State significant development & State significant infrastructure

Minister & Planning Assessment Commission

Outline of development types & who will determined them

• Notification of complying development will be as per these Regulation amendments

• Mandatory minimum notification requirements for local development will apply

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New Planning System

• Specific sections in new local plans for exempt & complying development are expected

• State-wide provisions for exempt development: Additional development types identified by council Local exclusions and variations will be rare

• State-wide provisions for complying development: Councils to include additional development types to streamline

approvals Exclusions allowed where justified by significant character or

environmental factors Greater local variation will be facilitated

Exempt & complying development in new local plans

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New Planning System

• Work underway to consider how current development standards can incorporate greater local variation

• Greater planning powers for councils and communities

• Ability to modify state-wide complying development to: Tailor certain controls to reflect local character Include additional controls supported by local communities

• Provided councils maintain the current level of growth of complying development approvals

• Review of outcomes after 2 years of operation

Allowing greater local variations

Changes to Key Requirements

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Commenced on 27 February 2009 and included:• The Exempt Development Code - 41 development types• The General Housing Code Stage 1 - 1 & 2 storey dwellings and ancillary

development on lots greater than 450sqm

Significant amendments made: • Housing Alterations Code (September 2009)• General Commercial and Industrial Code (September 2009)• Subdivisions Code (June 2010)• General Housing Code Stage 2: Small lots (February 2011)• Rural Housing Code (February 2011)• Demolition Code (February 2011)

Exempt and Complying Development SEPP

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• New industrial buildings and additions to commercial and industrial buildings

• Expand change of use and alterations to commercial buildings

• Amendments to exempt development and housing codes

• New exempt development codes Advertising and Signage Temporary Uses and Structures

• Repeal of redundant provisions in State policies Repeal of 4 existing SEPPs Substantial repeal and renaming of the Temporary Structures SEPP Amendments to 19 other SEPPs

Purpose of the amendment

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• Commencement date for the SEPP and Regulation amendments: 22 February 2014

• Equivalent land use zones for development under the Affordable Rental Housing SEPP – is retrospective.

• A CDC lodged prior to commencement date is to be: Assessed against the development standards of the unamended SEPP Processed under relevant procedural requirements in the

unamended Regulation Determined with conditions imposed as per the unamended SEPP

and unamended Regulation

Transitional arrangements

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• No change to major exclusions: Critical habitats Wilderness area (defined in the Wilderness Act 1987)

• Change for exempt development and specified complying development within Environmentally sensitive areas

• State and local heritage Development enabled outside mapped or described area s57 Heritage Act 1977 exemptions for State items

Sites excluded from complying development

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• Land identified in an environmental planning instrument• Definition of coastal erosion hazard• Unsewered land affected by the Sydney Drinking Water

Catchment SEPP • Exempt development allowed on designated development• Development allowed on partially excluded land

Local exclusions and variations • Exclusions and variations in Schedules 2- 5 of the SEPP • 16 requests by councils are being dealt with in the amendment

Land–based exclusions

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• Model clause from standard instrument reworked for exempt and complying development

• Covenants requiring compliance with a conflicting development standards (i.e. cut and fill, height, floor area) are suspended and will not apply

• Covenant not suspended if: Imposed by Council (via subdivision consent) imposing

development standards not covered by policy. I.e. use of materials, requiring pitched roofs

Imposed by former land owner

Suspension of certain covenants

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• Must include information on new/amended development codes• Development can now occur on lots affected by certain land-

based restrictions if not on the part of the lot affected Councils must identify lots affected by a land exclusion Must also identify the extent, ie ‘wholly affected’ or ‘partially

affected’ if affected by exclusions for: • Cl.1.17A (1)(c) – Wilderness Area • Cl.1.17A (1)(d), 1.17A (2), (3) & (4) – SHR and EPI heritage items • Cl.1.17A (1)(e) – Environmentally Sensitive Area • Cl.1.19 – Specific Land Exemptions relevant to Parts 3, 3A, 4, 4A, and 5A

If council does not have sufficient information a statement to this effect must be included in the s.149

Section 149 planning certificates


Exempt Development

Exempt Development

• Changes of use - specific land uses of similar intensity Also different types of places of public worship (SEPP 4)

• Driveways and hard stand spaces• Pathways and paving

• Roller shutter doors• Charity bins and recycling bins - Waste storage containers• Sculpture and artworks

• Footpaths—outdoor dining and Mobile food and drink outlets Controlled under LGAct or Roads Act approvals

New and amended exempt development types

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Exempt Development

Aerials, antennae and communication dishes

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Exempt Development

Fences

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Exempt Development

• Up to 600mm above or below ground level• Max depth of fill = 150mm (not more than 25% site)• Setback to boundary and easements

Earthworks

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Exempt Development

Minor land subdivision:• widening a road, moving of a lot boundary, • creating a public reserve, to excise land for public purposes.

This work can not: • Create a residential lot, result in a lot smaller then allowed in the LEP, must

not affect services, must not increase the fire risk to buildings.

For moving of a lot boundary (boundary adjustment) • For rural and environmental land must only be a minor change of the area.• For residential, commercial or industrial land, must not change the area of

either lot by more than 10% of the current size.

Subdivision

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Exempt Development

• Minor alterations, repairs and maintenance to existing boatsheds, jetties, marinas, pontoons, water recreation structures and wharf of boating facilities

• Works include: decking, handrails, ladders, or other non-load bearing element non-structural internal or external alterations to a boat shed emergency lighting and other equipment, and service pedestals painting and similar treatments to protect structures

Waterways structures

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Exempt Development

Advertising & Signage Exempt Development Code

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Exempt Development

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Exempt Development

• Tents, Marquees and Booths for private or community events• Stages or Platforms• Major event sites – additional temporary development

• Scaffolding, hoarding and temporary construction site fences• Temporary Builders structures• Filming

• Trading hours – temporary extensions for Christmas• Trading hours – temporary extension for licensed premises

Temporary Uses & Structures Exempt Development Code

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New Requirements for Complying Development

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Important requirements for lodging a CDC

Pre-requisites for complying development • Existing requirements

Flood affected lots (flood level certificate) Bushfire prone land (BAL certificate) Approval for new driveway crossing (Roads Act approval) Approval for tree removal (Tree Preservation Order)

• New pre-requisites to allow for additional development types Protection of easements – requirement for a Certificate of Title Building upgrade report – Additional fire safety requirements RMS concurrence – New industrial buildings > 5,000m2

Statement from qualified person – site contamination assessment Requirements of the relevant water utility

• Information requirements for CDC under Fire Safety Code

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Easement ProtectionApplies where development standard specifies setback to registered easement • General Housing Code

(Part 3) • C&I Building Alterations

Code (Part 5) • C&I New Buildings

Code (Part 5A)

Requirements: Cl.4(1)(k) Sch 1 of the

Regulation

Developer obtains certificate of title for the land

The certificate of title and the title diagram if required, must be lodged with the CDC application to the certifier

Certifier must ensure that the development standards are met by confirming that the proposed buildings are

not located over any registered easement

If the certificate of title includes a registered easement the title diagram for the lot is also required

The certifier approves the CDC application


Building Upgrade Applies: • Change of use or

alterations >500m² of a pre-1993 building

Requirements: Cl.132A of the

Regulation Cl.154D of the

Regulation

Developer to obtain report from independent accredited certifier to identify any work to be carried out

Report must identify: • any work to be carried out• other work as on-going strategy

Application for CDC lodged to include copy of report and plans, and must include works specified in report

CDC approved and copy of report provided to Council

Council may issue s.121 order for upgrade works, either: • for further works to be done immediately, or • as part of an on-going strategy

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Receipt from council that they received the report required by certifying authority prior issue of OC


RMS Certificate Applies:• New industrial

building or additions >5000m² on or within 90m of a classified road

Requirements: Cl.4(1)(k) Sch 1 of

the Regulation

Condition: Cl.136I of the

Regulation

Developer applies to RMS for certificate

RMS issue the certificate. May include conditions for on-site works or requirements,

or requirements for an agreement

CDC application is lodged with RMS certificate

CDC conditions that include the requirements specified in RMS certificate be met before work commences

Developer complies with CDC conditions30


Contaminated LandApplies:• Change of use under

C&I Buildings Alterations Code (Part 5)

• C&I New Buildings Code (Part 5A)

Requirements in the Regulation: Cl.3 (h) Sch 1 Cl.4(1)(l) Sch1, Cl.4 (7) Sch1

Condition: Cl.136J of the

Regulation

Applicant must identify historical land uses as part of the information requirements for CDC application

If land used for types of uses specified in SEPP 55 Guidelines, developer gets report from qualified person

Qualified person provides statement confirming whether land is suitable, or will be suitable for the use after

specified remediation works

Include a condition that the remediation requirements in qualified persons statement must be met

Any remediation must be in accordance with the SEPP 55 and Guidelines

Developer complies with CDC conditions31

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Water utilitynotification Applies:• Change of use

under C&I Buildings Alterations Code (Part 5)

• C&I New Buildings Code (Part 5A)

Condition: 17 of Schedule 8

Applicant notifies water utility and identifies water demand and waste water requirements

Water utility will issue a notice of requirements under Sydney Water Act or Water Management Act

Written notice or advice provided by the water utility of works/requirements to be part of development

Water utility advice lodged with CDC and relevant on site works included and approved as part of the development

Applicant obtains a s73 certificate from water utility and provides to PCA before Occupation Certificate is issued.

All work must be satisfactorily completed

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Neighbour notification

• New requirement for advising neighbours about proposed complying development in residential areas prior to approval.

• The provision of this notice does not allow for objection rights.

• Requirements are intended to encourage greater communication between applicants and their neighbours

• Consultation with neighbours should occur at the earliest opportunity preferably before detailed plans are drawn up and before an

application is lodged.

Neighbour notification & consultation

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• Advice of complying development: notice must be given by the certifying authority, to the occupier of any dwelling within 20m of proposed development,

and 14 days prior to approval.

• This requirement applies: to the demolition of a building under the SEPP, to a new dwelling and additions to a dwelling under all planning

instruments, including the Affordable Rental Housing SEPP, and only to new dwellings within a rural or residential zone, and notice is only

required to be given to dwellings within those zones.

• This requirement will not apply in ‘residential release areas’ defined as: Land Release and Urban Release Areas in an standard instrument LEP. Sydney Region Growth Centres and Specified sites under the MD SEPP.

Advice of complying development proposals

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• Neighbour notification of the commencement of work under a CDC: notice must be provided by the person benefitting from the consent to the occupier of any dwelling within 20m of proposed development, 7 days prior to the commencement or works.

• The requirement is only 2 days notice for sites within a ‘residential release area’.

• Imposed as a condition of approval on complying development as specified in cl136AB of the Regulation, and applies to: the demolition of a building under the SEPP a new building or an addition to a building under all planning instruments

• PCA must be satisfied that this pre-commencement condition has been met before the work commences – cl136N of the Regulation.

Notification of commencement of works

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Conditions of approval

• Existing conditions to be imposed in specified circumstances Clause 136A, 136B, 136C, 136D and 136E – no change Protection of adjoining buildings, structures and works (cl. 136H)

• New conditions Neighbour notification prior to commencement of works (cl. 136AB) Development accompanied by RMS certificate (cl. 136I) Development accompanied by contaminated land statement (cl. 136J) Payments of contributions or levies (cl. 136K & 136L) Payments of security (cl. 136M) Pre-conditions to be met prior to commencement of work (cl. 136N)

Conditions under EP&A Regulation


Development Contributions Applies to: • Type of development

which is subject to section 94 or 94A Contributions Plan

Cl.27(1A) of the Regulation

Conditions: Cl.136K & Cl.136L of

the Regulation

Section 149 planning certificate will identify relevant contributions plans applicable to the land

Check whether s94 plan contains applicable levies to that type of development

Include a condition requiring payment in accordance with the s.94 plan to be paid before work commences

• Applicant contacts council • Council calculates the amount of the payment• Applicant pays council & provides receipt to PCA

PCA must be satisfied this pre-commencement condition has been met.


Payment of Security (Damage deposit/bond)

Applies to:• All new buildings

and additions over $25,000

Condition: Cl.136M of the

Regulation

DA fees and charges published on council’s website include fees for payment of security for the same type of

development in the same circumstances

Impose condition requiring payment in accordance with fees and charges published at the time of determination

• Applicant contacts council • Council calculates the amount of the payment• Applicant pays council & provides receipt to PCA

Applicant requests council to release security after works completed – less any specified inspection fee

PCA must be satisfied this pre-commencement condition has been met

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• Conditions for each code will be located in 5 separate schedules at the end of the SEPP.

• Standardised terminology consistent across all schedules. • Conditions have been strengthened - particularly in relation to

control of construction related impacts such as earthworks, soil erosion and sediment control and waste management.

• Schedules structured to correspond to the construction stages for the development with conditions relating to: Before works commence During works Before the issue of an occupation certificate Operational requirements

Conditions under the SEPP

Building Professionals Board


• Most complaints we get are about complying development• Most were about basic things … not complex issues … due to

certifiers not following the correct process identified on the checklists and skipping steps.

We accredit, advise and investigate

Great news! Most issues can be fixed NOW:- Adopt better processes and read the new policy carefully- Gather all relevant documents before issuing a CDC

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• If in doubt, DON’T issue a CDC! Don’t just rely on verbal advice

• Need help to understand the Exempt & Complying Development Policy? Contact the team in DP&I


Is it complying development?

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• Question about matters of professional practice? Contact the Board www.bpb.nsw.gov.au

We’re here to help

(click on “Publications & forms”, then “Resources for certifiers”)

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http://www.bpb.nsw.gov.au/

Commercial and Industrial Development

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Commercial & Industrial Development

Current provisions • Building alterations – internal commercial, light industry and warehouse

distribution centres• Change of use of premises – bulky goods, commercial premises, light industry,

warehouse distribution centre an ancillary offices

Changes allow for • Internal alterations

commercial offices, business premises, retail shops, industrial buildings, schools, universities, hospitals, registered club premises and other non-residential development.

• First use and first fit out without there being a prior approved use. • Change of use are grouped into types of uses that can be changed to other uses of

a similar or lesser intensity.

Commercial & Industrial Alterations Code

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• Ancillary development types mechanical ventilation systems, shop fronts and awnings, skylights and roof

windows, projecting wall signs, free standing signs, earthworks and retaining walls, driveways, hardstands, paving, fences and garbage bin enclosures and sheds.

• Important development standards New use must be permissible in the zone, and not a pub, a small bar, an

entertainment facility or a registered club. Alteration not to increase area of an entertainment venue Food or drink premises restricted to 50 seats – except in a food court. Existing conditions for noise, car parking, vehicular movement, traffic

generation, loading, waste management and landscaping remain. Car parking to meet council controls or s94 contribution if applicable Hours of operation

Commercial & Industrial Alterations Code

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• Applies to all Business and Industrial Zones New building, addition and external alteration for industry and

warehouse and distribution centre – but not heavy industry. Rear addition (not on a corner lot) and external additions to building

use for commercial premises. Exclusions apply to buffer area, river front, ecologically sensitive area,

environmentally sensitive land or within a protected area, or a foreshore area

• Key provisions for all development Water utility requirements to be met as a pre-requisite Development requiring clearing of >1,000m² of vegetation cannot be

complying development Tree removal up to 8m in height No buildings over registered easements

Commercial & Industrial New Buildings & Additions Code

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• Key development standards determined by those established in the local council LEP

• Where none are stated in the LEP those specified in the Code • Standards where this applies:

Building height – Council LEP or 15m for industrial 12m for commercial

Floor space ratio – Council LEP or 1:1 Setbacks from classified road – Council LEP or 10m Car parking requirements – Council DCP or if none the RTA Guidelines Drainage requirements – Council DCP

• Existing conditions on noise, car parking, vehicular movement, traffic generation, loading, waste management and landscaping must be complied with

Commercial & Industrial New Buildings & Additions Code

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• Maximum floor area: new industrial buildings up to 20,000m² additions to existing industrial buildings of up to 5000m² LEP restrictions on maximum floor area for specific uses continue to apply

• Setbacks Road setbacks determined by adjacent development (except classified road) Side setbacks only required where adjoining residential, reserves & rail

• Design requirements: façade treatment & articulation zone landscaping – also dealt with in conditions

• Other development standards cover: Caretaker flats Bunding Car parking & access, loading facilities & driveways, garbage & waste storage,

earthworks, drainage, bush fire prone land and flood control lots

New Industrial buildings

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New Industrial buildings - Setbacks from residential

Additional setbacks determined by the height and area of the building

Building area Setback minimum

0 – 1000m² 3m

1000m² – 5000m² 5m

50000m² – 10000m² 20m

10,000m² - 20,000m² 50m

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• Maximum floor area of an addition Retail purposes can be up to 1000m² or 50% of existing Commercial office and business premises 2,500 m² or 50% of existing

• Setbacks Road setbacks determined by adjacent development (except classified

road) Side setbacks only required where adjoining residential

• Design requirements Alterations on all façades - treatment must be similar to existing Landscaped areas – also dealt with in conditions

• Other standards cover: Car parking & access, loading facilities & driveways, garbage & waste

storage, earthworks, drainage, bush fire prone land and flood control lots

Additions to Commercial Buildings

Changes to the Housing Codes


• To address concerns raised in initial discussion paper and on-going issues received through Codes email/hotline

• Resulted in changes to standards related to: Basements and storeys Setbacks and corner lots Balconies and privacy Earthworks

• New provisions for: Detached studios Built to boundary requirements Development standards and protection measures for trees

Purpose of amendments

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Basements and storeys (including basement garages)

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Angle less than 135º = corner lot

Angle more than 135º not a corner lot

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Front / road setbacks• Clarify calculation of front

setback • Garages, verandahs etc not

used to determine setback

Side setbacks • Encroachments into

setbacks amended • Built to boundary for lots

10-12.5m

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Primary Road • Allowance for an articulation

zone• Measured 1.5m into the min

setback

Secondary Roads • Requirement for articulation

elements if less than 4.5 setback

Building Articulation

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Balconies and privacySetback Height Allowed? Privacy Screen required?

0m - 1m YES NO

0 - 3m 1m - 2m YES YES

>2m NO N/A

0m - 1m YES NO

3m - 6m 1m - 2m YES NO

2m - 3m YES YES

>3m NO N/A

0m - 1m YES NO

1m - 2m YES NO

6m+ 2m - 3m YES NO

3m-4m YES NO

>4m NO N/A59


Privacy screens Balconies

Windows

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Maximum floor area • Lot area < 350m² = 20m2 • Lot area >350m² = 35m2

• Studios included in limit on habitable floor area for the site

Maximum height • On/within 900mm of rear lane = 6m• All other locations = 3.6m

Detached studiosDetached studio

Dwelling house

Rear lane900mm

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Earthworks: Excavation & Structural Support • Up to 3m excavation and associated structural support • Setback varies based on depth excavation • Strengthened drainage requirements and protection of

adjoining properties • Retaining walls to be separated by 2m

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Earthworks: Fill & Structural Support Fill • Max height 1m • Contained by retaining wall within 1.5m of dwelling

• Retaining walls require certification by a professional engineer: over 600mm if within 1m over 1m in all other locations

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Tree removalHeights • Up to 8m for a new house • Up to 6m for additions

Location • Within 3m of a building

>25m2

Other restrictions • Not on significant tree

register • Not required to be

retained as a condition of consent


Tree protection

• ‘Protected tree’

• 3m building setback from protected trees

• Tree protection measures required during construction• AS 4790 - 2009• Tree guards

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Housing Alterations Code

• Internal alterations – expanded to allow alterations to common areas of residential accommodation

• External alterations – extended to all forms of residential accommodation o Restricted to the first three habitable storeys, other than

for services and utilities o Any external alteration must be below the height limit o Setback and siting standards specifiedo Provisions facilitate access ramps and stair lifts

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Other Complying Development Codes

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General Development Code

• Home (food) business – a home business (less than 10% of a dwelling) that involves the manufacture of food will be allowed as complying development provided it meets the requirement of the NSW Food Authority.

• Stages, Platforms Tents, Marquees or booths for community events – development standards for these temporary structures have transferred from Temporary Structures SEPP.

• Sydney Olympic Park (major events) – internal and external alterations or additions to a major event venue transferred from Major Development SEPP.

• Waterways Structures – structural repairs to, the replacement of, or the undertaking of maintenance work to specified structures, including work to any piles or slipway rails will now be complying development.

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Subdivision Code

• Existing provisions allow the strata subdivision of a building into separate strata units

• The types of buildings included are: Commercial offices, business, industrial and retail buildings. Residential buildings (townhouse developments, multi dwelling housing

(apartment buildings and residential flat buildings), It does not include subdivision of a dual occupancy (2 dwellings on 1 lot)

• Changes now clarify that: multi dwelling housing, and approvals under former Part 3A

can now be strata subdivided under this part of the SEPP.

Changes to the Subdivision Code

Fire Safety Code

A new part inserted into the SEPP which has three components:

1. Installation or extension to a fire sprinkler system in a residential aged care facility.

Provisions inserted on 1 January 2013 currently in the General Development Code

Transferred into the new Code with provisions generally unchanged

2. Alteration to a hydraulic fire safety system.

3. Fire alarm communication link works.

What is the Fire Safety Code?

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Fire Safety Code

• Limited to modifications to fire hydrant systems, fire hose reel systems, sprinkler systems and hydraulic fire suppression systems

• Applies only where the mains water pressure will, or has been reduced by the relevant water utility.

• Allows for the installation of, or modification to: a fire main or other pipe work, or a fire water storage tank, or a fixed on-site fire pump set, or a fire brigade booster connection.

Alteration to a hydraulic fire safety system

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Fire Safety Code

• Provisions formally contained in SEPP 4 have been transferred to the Fire Safety Code:

• Applies to: New connections and reconnections of fire alarm

communication links. Converting a fire alarm system connection with a private service

provider to a different service provider. Converting a fire alarm system connection to a different

monitoring system of the same service provider.

Fire Alarm Communication Link Works

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What is the EHC?Certifiers | Project Home

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| Builders Developers &

Home Owners

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Improved access to the NSW Housing

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E-Planning

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5876543210987654321

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As at 1st January 2013

www.electronichousingcode.com.au

For Assistance please go to: http://ehc.zendesk.com

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