Exempt and Complying Development

The State Government’s State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, which included the NSW Housing Code, took effect from 27 February 2009. The Code provided for standardised development controls for exempt and complying development for certain forms of residential dwelling forms (new and existing single dwelling houses) across the state.

The SEPP has operated in parallel with Tweed Council’s existing exempt and complying development controls in Section A10 of the Tweed Development Control Plan 2008.

With the exception of Complying Development Certificate applications (CDCs) under the Subdivision Code, all CDCs lodged at Council are assessed by the Building Unit, although advice is often sought on technical matters from other sections of Council, including specific advice from the Development Assessment Unit on applications under the General Commercial and Industrial Code.

The State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the Codes SEPP) has recently been amended to significantly expand the range of exempt and complying development across the State and increase the number of properties to which the Codes SEPP applies.

The Codes SEPP amendments came into effect on 25 February 2011. These amendments now include eight main Codes:

• the Exempt Development Code
• the General Housing Code
• the Rural Housing Code
• the Housing Alterations Code
• the General Development Code
• the General Commercial and Industrial Code
• the Subdivisions Code
• the Demolition Code

The February 2011 Codes SEPP amendments originally stipulated that co-existence of Council’s exempt and complying development controls would cease on 1 September 2011. However, through various policy directions and legislative changes made by the NSW Department of Planning and Infrastructure (DPI), this period of co-existence for local Council DCPs and the Codes SEPP has been extended until Council achieves gazettal of its Standard Instrument Local Environmental Plan (LEP), which is expected to occur the end of 2012. The DPI issued Circular No. PS 11-023 on 25 November 2011 which explains this extension of the transition period of the creation of local complying development controls.

Recent Codes SEPP amendments have also removed flood prone and bushfire affected land from the excluded categories for Complying Development, thereby requiring a technical assessment of these issues for CDC processes on certain properties.

New Exempt and Complying Development Advice Services Factsheet (942kb)

Section 149 Certificates

A requirement of any conveyancing transactions, a Certificate under Section 149 of the Environmental Planning and Assessment Act, 1979 is also a very useful guide for current land owners or potential purchasers on the main constraints and opportunites for future land use and development.

The State Government also updated its planning legislation to require all NSW Councils to provide information through the Section 149 Certificates on whether or not a property is excluded from the compying developnment provisions of the Codes SEPP.

Whilst not a definitive guide on Complying Development, it gives you an indication on whether you are immmediately excluded from applying for new developments under the Codes SEPP.

The Certificate comes in two parts, with the following fees applied by Tweed Council:

Section 149 (2) - $53

Section 149 (2) and (5) - $133

An additional urgency fee can be paid for a 24 hour turnaround on these certificates.

Pre Lodgement Advice on Exempt and Complying Development

It has become apparent with the recent amendments to the Exempt and Complying SEPP, particularly the change to the technical assessment of bushfire and flood prone land, that the complexities of interpreting and assessing proposed developments is creating a major resource burden upon Council staff in responding to enquiries from the public.

To assist customers with these enquiries, Council has provided an extensive range of information on its own web site, as well as links to other relevant web site information. Council also provides its own direct advice on enquiries through its Contact Centre offices at Murwillumbah and Tweed Heads.

However, whilst Council is committed to providing a high standard of administrative and professional advice for pre-lodgement enquiries, the extent of technical assessment for both initial enquiries and lodged Complying Development Certificates (CDCs) under the SEPP, or Council's Development Control Plan (DCP), has necessitated the introduction of a new fee-for-service for those enquiries that go beyond the most basic explanation of the SEPP or DCP, and the related approvals processes.

Under this new procedure, it is expected that Council officers will continue to assist with basic enquiries on any preliminary enquiries relating to exempt and complying development proposals under the SEPP and Council's DCP. This advice can be sought through Council’s current phone and counter service, through both the Murwillumbah and Tweed Heads offices. Additional support can and information can be sought through the web sites of Council and the NSW Department of Infrastructure and Planning.

In addition to this basic advice, a common pre-lodgement fee of $90 for both the DA and Building Units has been created in Council's 2011/2012 Fees and Charges to cover the costs of staff investigations into the Codes SEPP and Council DCP enquiries, including a written response.

Given the varying range of scale and complexity of Exempt and Complying Developments, the Building Unit have decided on a $5,000 threshold of estimated construction costs of proposals to determine when to require the $90 pre-lodgement fee. Most exempt development enquiries through the Building Unit, generally relating to small scale residential development types, will not necessitate a fee. In terms of CDC enquiries, a new fee incentive has been included in Council's 2011/2012 Fees and Charges to allow for a $55 discount to any applicants who follow up from the pre-lodgement enquiry and lodge either a CDC or Construction Certificate application with Council.

Exempt and Complying Development Enquiries for development proposals under the General Industrial and Commercial Code (such as change of use) are generally investigated through the Development Assessment Unit, and are usually more complex in terms of the required investigations. Therefore, the $90 pre-lodgement fee for these types of development will be applied to both exempt and complying development enquiries.

In order for Council to provide a substantial response to the pre-lodgement enquiry, the following basic range of information will be required from proponents:

• identification of property by legal description (Lot and DP) of the subject site;
• an annotated scaled plan or sketch plan of the subject site;
• identification of any existing structure, the proposed structure and the distance of that structure to any boundary and any existing buildings;
• an indication of the height and floor space of the proposed structure/s; and
• the existing layout and proposed layout of buildings (for any internal changes).

The service agreement for a written response to any CDC pre-lodgement enquiry from the Building Unit (generally relating to small scale residential development types) will be 7 working days from the receipt of the request. Given the additional complexities of exempt and complying development enquiries under the General Industrial and Commercial Code (such as change of use), a written response is likely to take up to 14 days.

Please note that the information supplied by Council officers will provide you with a general indication of whether your proposed use can be considered as exempt and complying development, and outline any pre-requisite and ancillary approvals, and cannot be used as any approval of the proposal.

Pre-requisite Information for CDC Applications

The following pre-requisite information may be required to accompany any CDC application, depending on the type of development:

• A permit under Council’s Tree Preservation Orders
• A BASIX Certificate
• Bushfire assessment BAL risk certificate. This certificate can be obtained from either the Rural Fire Service or an accredited specialist, or through Council's Building Unit for a fee of $250.
• Flood Lot Control Certificate. This certificate can be obtained from an external professional engineer (who specialises in hydraulic engineering), or through Council’s Planning and Infrastructure Unit for the fee of $75.
• Long service levy

Under current legislation, Council officers can not accept a CDC where the above relevant pre-requisite approvals have not been obtained prior to lodgement.

In accordance with current practice, Council's Building Unit will accept and assess the following applications concurrently, where required:

• On-site effluent management systems, sewer, trade waste and water connections, and stormwater drainage system approvals under Section 68 of the Local Government Act
• Driveway and public road access under Section 138 of the Roads Act

Prior to Issue Information and Payments for CDCs

CDC Applicants should also be aware that there may be additional charges relating to their proposal which require payment prior to the issue of a CDC, and other necessary information including:

• Builder's details
• Home warranty insurance
• Owner/builder permit
• Section 94 and Section 64 contribitions