In brief - NSW moves closer to code based system of planning 

The NSW government is proposing to allow a wider range of commercial, retail, industrial and residential development to be considered as either exempt or complying development under the Codes SEPP, to enable home and business owners to obtain faster and more cost effective approvals. The proposed changes are a significant step forward to a code based system of planning in NSW.

Covenants, environmentally sensitive areas and heritage items 

Exempt and complying development will now be permitted regardless of most covenants registered on title that may restrict development at a site. Exempt development will also be permitted in environmentally sensitive areas where it is ancillary to other buildings or uses already on a site. Some limited changes are proposed to allow exempt and complying development on certain sites that contain heritage items.

Proposed exempt development changes

New types of exempt development have been introduced including advertising and signage, temporary uses and structures, expanded changes of use, outdoor footpath dining, mobile food and drink outlets and waterways structures. Changes have also been made regarding extension of hours during the Christmas period for commercial premises and for licensed premises at specified times.

New approvals required prior to issue of complying development certificates (CDCs)

The following new approvals are now required prior to the issue of CDCs:

  • by Roads and Maritime Services where a new building or additions over 5000m2 are proposed on, or adjacent to, a classified road
  • by a qualified person where a new building or change of use is proposed on land requiring remediation
  • an independent report on fire safety upgrades of existing commercial and industrial buildings, for alterations and additions to buildings constructed before 1993

Changes for retail, industrial and commercial premises

Businesses will be able to change the use of some commercial, retail and industrial buildings and spaces as complying development. For example, a change from an accountant's office to a medical office, or a light industrial building to a self storage building, will be considered complying development, provided that certain development standards are met.

Additionally, individual shops and offices in a commercial building shell that have already been approved by council without any specific tenant types may be approved as complying development, provided that the new use meets the conditions in an original council approval.

The following development types are proposed as complying development:

  • new industrial buildings up to 20,000m2 in size on industrial zoned land (excluding heavy or hazardous industry)
  • additions to existing shops of up to 50% of the existing floor area or 1000m2, whichever is the lesser, subject to certain development standards
  • additions to commercial offices of up to 50% of the existing floor area or 2,500m2, whichever is the lesser, subject to certain development standards

Development standards for residential buildings

Upgrades for safety and disability access to most residential buildings, including strata buildings, will be permitted as complying development. Internal refurbishments to residential premises will also be permitted as complying development (including common areas in strata buildings).

Changes have also been made to construction of dwelling houses on boundaries, and detached studios of either 20m2 or 40m2 in back yards, depending on the size of the lot. Further changes have been made to refine development standards for basements, excavation depths, setbacks for corner blocks and privacy screens on some windows as complying development.

Notification requirements to neighbours for complying development

Feedback is being sought from the Department of Planning and Infrastructure regarding a proposal that residential neighbours within 50m be notified five days before an application for a CDC is approved, if the development is:

  • a new dwelling house being demolished or built, or an addition is made to an existing dwelling, or
  • the demolition and building of industrial buildings or extensions to existing commercial and industrial buildings.

Proposed new fire safety code as complying development

A new fire safety code allows changes to some building fire safety systems as complying development, including alterations to hydraulic safety systems and changes to fire alarm communications links such as fire hose reels, sprinkler systems and water tanks. 

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2024.

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