Development Stage 1 - Pre Lodgement
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Development Types and What Type of Approval is Required
The big starting point for any new development is whether you need an approval.
The questions below will help you to work out whether of not you need an approval from Council, or some other form of public or private authority.
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Is your proposed use permitted under Council’s LEP?
You can find out the zoning of your site under Tweed Local Environmental Plan 2000 by either purchasing a Section 149 Certificate from Council or by viewing the attached LEP zoning map.
The Tweed Local Environmental Plan 2000 written document will then guide you on:
- What use are permitted in the zone that applies to your property, either without the consent of Council or only with the consent of Council
- Information about development that is either allowable with consent or is prohibited within the respective zones is included in clause of the Tweed LEP 2000.
It is not possible to lodge a DA for prohibited development. If you are proposing a development that is expressly prohibited, you will need to enquire about the possibility of an amendment to the Tweed LEP.
What do we mean by “development”?
Before erecting a building, making any changes to a building, subdividing or occupying premises within the Tweed Shire LGA, you are likely to need to submit a development application (DA), or some other form of development approval.
As a starting point, a DA is required for most 'development' in the Tweed Shire area.
Section 4 of the Environmental Planning and Assessment Act 1979 (EPAA 1979) generally defines development as follows:
- the use of land, and
- the subdivision of land, and
- the erection of a building, and
- the carrying out of a work, and
- the demolition of a building or work.
This definition covers erection of buildings, change of building use, demolition of buildings or works and subdivision. However, the EPAA 1979 gives Councils the power to control development under 3 basic categories:
- development which does not require consent
- development which requires consent
- prohibited development.
Does all development require a DA?
No. The zoning tables of Tweed Local Environmental Plan 2000 allow for certain uses to be carried out without a development application.
What do we mean by Exempt and Complying Development?
Exempt Development is considered to be development of minimal environmental impact, such as outdoor sheds, avaries, bbqs etc. and does not require a DA to Council. You can proceed with this type of development as long as you have met the conditions outlined in Council’s DCP. Some structures may require some of technical assessment by a qualified builder or engineer to ensure it will be safe and stable.
Other development which is considered to have relatively low environmental impact, but requires a less onerous approval is called Complying Development. Complying Development does not require a DA, but is still the subject of a separate  Complying Development Certificate (234kb) process, which can be applied for through either Council or a private certifier.
The State Government’s State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, also known as the NSW Housing Code, took effect from 27 February 2009. The Code provides 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.
A copy of the SEPP and accompanying information can be viewed through the Department of Planning’s web site  www.planning.nsw.gov.au.
Tweed Council has existing exempt and complying development controls in Section A10 of the Tweed Development Control Plan 2008 (262kb).
Most Recent Legislative Changes to the SEPP
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 and Updated Council Services in Dealing with Exempt and Complying Development Enquiries and Applications
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
Further details on how to proceed with exempt and complying processes can be viewed through the Exempt and Complying Development section of this web site.
Development Assessment Panel
Prior to lodging an application, the Panel can provide you with technical advice in relation to your proposal. It is recommended that prior to making an appointment you make a preliminary check of the policy documents that may affect your property and/or discuss your proposal with a Development Assessment Town Planner.
The Panel will advise you whether your proposal is generally permissible, and will identify key town planning, building or engineering issues you will need to address in your development application.
Download Our Development Assessment Panel Fact Sheet (469kb)
What are the Types of Development that Require a DA to be Lodged?
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If you have not qualified for any of the above forms of development, you will most likely qualify as Local Development under Part 4 of the Environmental Planning and Assessment Act (EPAA), which requires the lodgement of a DA to Council.
Not all developments are assessed by Council. Certain types of development may require input or assessment by other State Government authorities. Make sure you check the categories below to see if this applies to your development.
Certain types of building works, such as Council and government infrastructure (roads, parks, sewer and water systems) fall outside of the Part 4 of the EPAA, and require approval under Part 5 of the EPAA. Part 5 approvals generally don’t apply to private, local developments.
Combined Development Application/Construction Certificate
Most building works will require a secondary form of approval, following the approval of a DA, and is known as a Construction Certificate (CC). A CC is required before commencing any building of construction work, and assures that the detailed plans and specifications comply with the Building Code of Australia and associated standards and codes, and also aims to ensure that there is consistency with the approved DA. Further information on Construction Certificates can be found in the Building section of this web site.
It is possible to lodge a Combined Development Application/Construction Certificate (234kb) with Council at the same time. Combined applications can bring great efficiencies, particularly for smaller development proposals, as it allows for concurrent assessment of development and building issues by specialised Council officers. However, you should also be aware that a construction certificate can also be assessed and issued by a Private Certifier, without Council input.
Integrated Development is development that needs both Development Consent from Council and an approval from another Government Authority. These approvals are assessed together as part of the DA to Council. In Tweed Shire, the most common form of Integrated Development is if the works involve excavation or work within 40 metres of a waterway. This requires a Part 3A permit from the NSW Department of Water and Environment under the Rivers and Foreshores Improvement Act 1948. Other examples of Integrated Development are if consent from the Roads and Traffic Authority (RTA) is needed under s138 of the Roads Act 1993 (generally applying to works impacting on a major road) or other works such as excavation in areas with a low water table, and bushfire prone lands.
A full list of Integrated Development can be found in the table under Section 91A of the EPAA 1979. If you feel your application is Integrated Development please check with the Council as additional fees must be paid when lodging an Integrated Development Application.
Regionally Significant Developments and Joint Regional Planning Panels (JRPPs)
The NSW Government’s planning reforms, aimed at delivering a more efficient and transparent planning system, include the establishment of Joint Regional Planning Panels (JRPPs).
These panels will determine, and provide advice to the Minister, on development proposals of regional significance. They will provide stronger-decision making through greater expertise, independence and local knowledge.
The new system for JRRPs commenced on 1 July 2009.
Regionally significant development includes:
- Commercial, residential, mixed use, retail and tourism development with a capital investment value more than $10 million and less than $100 million
- Community infrastructure and ecotourism developments more than $5 million both public and private, such as schools, community halls and child care facilities
- Certain coastal developments currently in Schedule 2 of the State Environmental Planning (Major Projects) 2005 (known as the Major Projects SEPP)
- Designated development (development needing an environmental impact statement)
- Development where the council is the proponent or has a potential conflict of interest.
Six regions have been established, covering metropolitan and regional areas of NSW.
JRPPs have been established for the Northern, Hunter-Central Coast, Southern, Sydney Metropolitan East and Sydney Metropolitan West regions (aligned with existing Department of Planning boundaries). Members of the existing Planning Assessment Commission (PAC) are currently proposed to undertake JRPP functions in the Western Region. The JRPP provisions do not apply in the City of Sydney, where the Central Sydney Planning Committee (CSPC) will continue to function.
Tweed Shire Council is located within the Northern Region.
The JRPPs consist of five members as follows:
State Members: Three State members appointed by the Minister, each having expertise in one or more of the following: planning, architecture, heritage, the environment, urban design, land economics, traffic and transport, law, engineering, tourism or government and public administration. One of the State members is appointed as the Chairperson of the JRPP.
Council Members: Two council members, and an alternate have been appointed by each council that is situated in a part of the state for which a JRPP is appointed. At least one council nominee is required to have expertise in one or more of the following: planning, architecture, heritage, the environment, urban design, land economics, traffic and transport, law, engineering or tourism. The council members participate in JRPP matters when they are located in their local government area.
Following an earlier Expressions of Interest process, Tweed Council, at an Extraordinary Meeting held on 30 June, 2009, resolved to appoint the following people as Tweed Council's community panel representatives on the Northern Region Joint Regional Planning Panel:
- Robert Quirk
- Dr Ned Wales
- Stephen Grimes (Alternate)
The State members appointed to the Northern Regional Panel are:
- Garry West (Chair)
- Pamela Westing
- Dr John Griffin
- Bruce Clark (Alternate)
Council’s Role in Relation to Matters under Consideration by the JRPP
The assessment of applications to be determined by the JRPPs is to be undertaken by the relevant council officers in which the proposed development is located. The council officers submit their assessment report and recommendations to the JRPP for determination.
Whilst the council is not the determining body for JRPP matters, the council has the opportunity to provide its views about any matters that are to be considered by a JRPP.
The councils view may be provided to a JRPP by way of a submission in the same way that any other submissions about the matter are provided to a JRPP for its consideration in determining a matter.
The JRPP must consult the council prior to determining a matter which is likely to have significant financial implications for the council.
Further Information on JRPPs
Further information on regionally significant developments and JRPPs can be accessed through the NSW Department of Planning’s JRPP web site.
Transitional Arrangements Pending the Repeal of Part 3A
The new Coalition NSW Government has announced that Part 3A of the Environmental Planning and Assessment Act 1979 will be repealed. As such, transitional arrangements will be required for those projects which are already in the major projects assessment system under Part 3A.
On 13 May 2011, the Government announced several transitional arrangements, which includes revoking the Part 3A status of a number of residential, commercial, retail and coastal projects (see list below). Under these arrangements:
- 63 projects will now either not be declared as major projects under Part 3A or will be immediately removed from the Part 3A system and generally handed back local councils for assessment and determination by the relevant Joint Regional Planning Panel.
- 102 other residential, retail, commercial and coastal projects which have substantially progressed within the existing assessment process will continue under Part 3A pending its legislative repeal.
- All applications for other project types (such as mining, chemical and manufacturing, agricultural, tourist and significant infrastructure proposals) which are already in the Part 3A system will continue to be assessed and determined under Part 3A pending its legislative repeal.
- For significant private projects remaining in the system, the Minister will delegate his determination role to the independent Planning Assessment Commission (PAC), while smaller less complex applications will be determined by senior officers of the Department of Planning and Infrastructure.
- The Government’s position of not accepting any new projects under Part 3A will continue.
The changes will be given effect via an Amendment to the Major Development State Environmental Planning Policy.
A Circular has been prepared by the Department of Planning and Infrastructure to explain these changes in more detail.
Major Development SEPP Amendment Circular (131kb)
These types of development require particular scrutiny because of the nature of the development, or their potential impact. These developments are listed under Schedule 3 of the Environmental Planning and Assessment Regulations 2000 and include industries such as concrete batching plants and the like that have a high potential to pollute.
Designated Development is generally a type of Local Development that has potentially significant environmental impacts.
Applicants must firstly obtain the Director General’s requirements from the Department of Planning for the preparation of an Environmental Impact Statement (EIS).
Threatened Species Development
Applications that pose a significant impact on threatened species of fauna or flora, endangered ecological communities, or their habitats require the preparation of a Species Impact Statement (SIS). An SIS must be submitted with the development application, and the approval (concurrence of the Director General of the Department of Environment and Climate Change (National Parks and Wildlife Services) must be obtained before Council can approve the development application.
The requirements of the Director General’s of the Department of Planning must be obtained before the preparation of any SIS.
The 7-Part Test of Significance (Flora and Fauna Assessment), or Assessment of Significance under Section 5A of the Environmental Planning and Assessment Act is required to be undertaken by a suitably qualified ecologist to investigate whether a development proposal has a significant impact on threatened species, populations, or endangered ecological communities, or their habitats, and whether an SIS is required.
The Council has the discretion to determine that an SIS is required, based on the findings of the 8-Part Test.
The 8-Part Test of Significance (Flora and Fauna Assessment) is to be submitted with any development application that impacts on threatened species, populations, endangered ecological communities or their habitats.
The Environmental Planning and Assessment Act and Regulation, and associated legislation, including Environmental Planning Instruments such as SEPPs, REPs and LEPs may require that Council seek and obtain the concurrence of various government authorities such as Ministers, Commissioners, or Director Generals before approval may be given to affected Development Applications.
At the time of lodging the development application, the required concurrences must be identified on the Development Application form, and a referral administration fee paid to the relevant Government Department.
Some examples include the concurrence of the Director General of the National Parks and Wildlife Service for Threatened Species Development, or the concurrence of the Department of Planning for variations to some development standards such as lot size, building height, or the concurrence of the Department of Planning to fill, drain, or clear any SEPP No. 14 – Coastal Wetland.
Issues of concurrence should be discussed with Council planning staff prior to lodging affected development applications, and will require an additional set of supporting documents to be provided at lodgement for each concurrence referral.
Failure to identify all required concurrences at the time of lodgement, will result in delays of the processing of the DA.
Similar to most Local Developments, you need to determine first whether a development application for a subdivision is required. Subdivisions are generally assessed as part of the DA for development. Most “subdivisions” do require development consent under Clause 19 of the Tweed LEP 2000, although it does allow for certain exemptions. If a development application is required, you will need to address the minimum allotment standards of Sections 4 and 11 of the Tweed LEP 2000, as well as the more detailed subdivision controls of Section A 5 of the Tweed DCP 2008.
Types of Subdivisions...
A torrens title subdivision involves the creation of new allotments from an existing allotment. To obtain approval for a torrens title subdivision, a development application is required to be lodged with Council.
A strata subdivision is most commonly used within multi unit residential and commercial buildings. This title gives individual ownership to small portions of a larger property and an undivided share to common property (e.g. gardens or driveways). Owners will become members of the body corporate, which controls maintenance. There are certain zones within Tweed LEP 2000 for which strata subdivision does not require development consent, and other zones that do. It is suggested that you check the zoning tables of the Tweed LEP 2000 in the early stages of your investigations.
A boundary adjustment is defined as the re-alignment of a lot boundary. A boundary adjustment may be exempt from having to obtain development consent, as mentioned above through Clause 19 of the Tweed LEP 2000.
A site consolidation is the amalgamation of two or more lots into one lot. A consolidation of allotments may be exempt from having to obtain development consent, as mentioned above through Clause 19 of the Tweed LEP 2000.
A stratum subdivision is the vertical subdivision of sections of a building into separate titles. An example is the subdivision of a ground floor retail or commercial area from the above residential floors. Similar to strata subdivisions, there are certain zones within Tweed LEP 2000 for which stratum subdivision does not require development consent, and other zones that do. Once again, check the zoning tables of the Tweed LEP 2000 for confirmation.
The development application is generally just the first stage of the assessment of subdivision proposals, and further assessment and approvals are required throughout and following the final stages of construction. Click here for a more detailed explanation of these Post DA Subdivision Processes.
Other Accompanying Development Assessment Processes
Apart from the assessment required for a development application, you may also need to apply for a series of other development assessment processes to accompany your DA, or at a further stage, prior to the commencement of any building works or construction.
These approvals generally relate to an assessment of the utilities and infrastructure that support a new development, such as driveway and road construction, sewage, stormwater drainage and water connections.
Some processes such as Subdivisions need to be assessed concurrent to the entire development and building process (through both DA and CCs), and final sign off of new works.
In terms of development applications for certain smaller scale developments, such as new single dwelling houses and alterations and additions to existing single dwellings, you may be required to complete a separate “Driveway access to property application”, under Section 138 of the Roads Act. This application is assessed by the Engineering and Operations Division, who will liaise with the allocated town planner for a DA to ensure that the assessment is done in a co-ordinated manner.
For all other applications, a preliminary assessment will be conducted of stormwater drainage works and plumbing issues, with conditions of development consent which will require the submission of an “Application for Approval of Stormwater Drainage Works” and an “Application for Plumbing and Drainage Work on Private Land”, at a later stage of the building assessment and construction process.
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