Australia: Expanded categories of exempt and complying development in NSW

More development in NSW is to be code assessed or exempt from requiring approval, as the categories of exempt and complying development have been expanded through amendments to the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008. The major area of change is to commercial and industrial developments - a change which is welcomed as approval timeframes are significantly reduced.

A number of consequential amendments have also been made to the Environmental Planning and Assessment Regulation 2000 (NSW) which require neighbour notification and impose new obligations on certifiers to be satisfied that all conditions have been met prior to work commencing.

The changes come into force on 22 February 2014.


For the past two years, the NSW Government has consulted a range of stakeholders regarding amendments to the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP). The rationale behind the amendments is to implement some of the Government's goals outlined in the NSW 2021 Plan, specifically Goal 4, which is to "reduce red tape" by, for example, increasing the number of developments that are code assessed rather than merit assessed and therefore expanding the types of development covered as complying development.1 These amendments were also identified as being required as a precursor to the broader changes proposed for the NSW planning system.

The amendments introduce:

  • two new Complying Development Codes including for new commercial and industrial buildings up to 20,000m˛, additions and alterations;
  • two additional categories of exempt development for advertising and signage, and temporary uses and structures;
  • a variety of changes to the existing General Exempt Development Code and Housing Codes;
  • a new Fire Safety Code which will facilitate upgrade works to hydraulic fire safety systems;
  • neighbour notification requirements for proposed complying development in residential and rural zones; and
  • obligations for private certifiers and councils to ensure that they are satisfied that any relevant preconditions have been satisfied prior to work commencing.


New Codes for commercial and industrial development

There are two new Parts in the Codes SEPP which broaden the scope of complying commercial and industrial development:

  • New Part 5 Commercial and Industrial Alterations Code, which replaces the existing Part 5 of the Codes SEPP; and
  • New Part 5A Commercial and Industrial (New Buildings and Additions) Code, which introduces a new category of complying development.

As a result, the following types of development are complying development:

  • New industrial buildings (excluding heavy industry) or warehouse or distribution centres with a gross floor area up to 20,000m˛ (Part 5A of the Codes SEPP);
  • Additions and external alterations to existing commercial and industrial buildings (excluding heavy industry), warehouse and distribution centres (Part 5A of the Codes SEPP). These include:
    • For industrial buildings, the total gross floor area of the building as altered is restricted to not more than an additional 5000m˛ if the existing building has a gross floor area of 5000m˛ or less. Otherwise, if the existing building has a gross floor area that is greater than 5000m˛, the alteration or addition must not increase the gross floor area by more than 5000m˛.
    • If the development is for the purpose of an ancillary office or industrial retail outlet, the floor area of this addition must not be more than 20% of the total gross floor area.
    • For additions to the rear of existing commercial premises, the Code allows for additions up to a maximum of 1000m˛ or 50% of the gross floor area, whichever is the lesser, for retail use purposes. For additions of any other commercial use, the gross floor area of the additions must not exceed 2,500m˛ or 50% of the gross floor area, whichever is the lesser.
  • Internal alterations, change of use of premises and other miscellaneous developments to an expanded variety of types of buildings (Part 5 of the Codes SEPP). In particular, these changes facilitate broader change of uses compared to the old Codes SEPP. For example, use of a building as a warehouse or distribution centre can be changed to another warehouse or distribution centre, neighbourhood shop, kiosk, wholesale supplies use, business premises, office premises, light industry, general industry, packaging industry or industrial retail outlet.

New buildings and additions will still need to comply with the setback, height limits, FSR and other building requirements specified in the applicable Local Environmental Plan and the Codes SEPP.

The time limit for determining an application for a complying development certificate for these proposed developments remains at 10 days (although it is noted that the average actual determination time is 18 days2).

Dwelling houses and ancillary development

There are a number of changes that have been made to the General Housing Code (Part 3 of the Codes SEPP), Rural Housing Code (Part 3A of the Codes SEPP) and Housing Alterations Code (Part 4 of the Codes SEPP). These include:

  • amended built to boundary standards to allow dwellings to be built to one side boundary for lots between 10m and 12.5m (compared to the current standard which only allows this for lots between 8m and 10m);
  • excavation to a maximum depth of 3m for a basement or basement garage which will be counted as an additional storey;
  • new development standards for improved privacy protection such as by requiring privacy screens on the edge of balconies and for windows where they are close to adjoining property boundaries at certain heights;
  • removal of trees up to 8m in height that are not on the significant tree register and subject to new protection measures for the remaining trees during construction;
  • detached studios will be allowed in connection with a dwelling house up to a maximum size of 35m˛ depending on the original lot size;
  • allowance for additional types of work as complying development in connection with other forms of residential accommodation, such as, internal alterations to common areas of residential buildings, alterations for the provision of services and utilities, and minor external alterations; and
  • strata subdivision of certain developments where there is multi dwelling housing is now 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.
    3. 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.

Development contributions

  • 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.

Certifier obligations

  • 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 [2012] 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 associated conditions that may be 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:

Building Upgrade Report

  • A building upgrade report from an independent accredited certifier for change of use, additions or alterations to buildings erected prior to 1 January 1993 and that involve a development area greater than 500m˛.

Site Contamination Assessment

  • For new industrial buildings or additions to existing commercial or industrial buildings, a report by a qualified contamination expert on the contamination status of the land, being that the land is either suitable for the development, or that the land will be suitable for development if certain remediation work is carried out. Where remediation work is required to be carried out, the complying development certificate must be issued subject to conditions stating that this requirement must be met.

Traffic Impact Certificate

  • For new industrial buildings or additions to an industrial building with a total gross floor area of 5000m˛ or more, and that has pedestrian or vehicular access to a classified road or is within 90m of the classified road, a certificate from Roads and Maritime Services.

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.

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).

It remains the case that there is no right of appeal against the determination of, or a failure or refusal to determine, an application for a complying development certificate (s85A(10) of the Environmental Planning and Assessment Act 1979 (NSW)).


Subject to meeting specified requirements, new categories of exempt development include:

  • Advertising, business and building identification signage (up to three business identification signs for a commercial building with one tenant and no more than six signs for any other building);
  • Temporary uses and structures such as marquees for events (applicable for residential and commercial use);
  • Temporary extension of unlicensed retail premises' trading hours leading up to Christmas (only in business zones); and
  • Extended trading hours for licensed premises but only when special events take place and subject to these extended hours being authorised under the Liquor Act 2007.

There are also changes to the General Exempt Development Code through the addition of more development types which include:

  • outdoor dining on footpaths for food and drink premises and mobile food and drink premises. However, authority is still required for this activity from the council as the relevant roads authority;
  • charity bins operated by an authorised entity; and
  • sculptures and artworks in specific locations as long as they have approval from the owner under the Roads Act 1993 and meet certain height restrictions, depending on the zone.

Some existing exempt development standards have been relaxed which include:

  • expanded categories of changes of use;
  • the realignment of boundaries in residential areas to a maximum of 10%;
  • provisions for fences, pathways and paving, hardstand spaces and earthworks to tighten up drainage provisions and protection of adjoining sites;
  • consolidated standards for aerials, antennae and communication dishes; and
  • standards for ATMs, awning and security fences.


The amendments will commence on 22 February 2014. Developers and private certifiers therefore have some time to get acquainted with the new provisions before they will commence and become enforceable. The expansion of the categories of exempt and complying development as part of the State Government's ongoing planning reforms is to be applauded. The changes outlined above cut back approval timeframes, costs and unnecessary red tape.

Additional information on the changes can be obtained from the Department of Planning and Infrastructure's website here.


1NSW Government, NSW 2021: A Plan to Make NSW Number One, Goal 4, page 12.

2NSW Department of Planning and Infrastructure, Better Regulation Statement for the proposed State Environmental Planning Policy (Exempt and Complying Development Codes) Amendment, page 8.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Most awarded firm and Australian deal of the year
Australasian Legal Business Awards
Employer of Choice for Women
Equal Opportunity for Women
in the Workplace (EOWA)

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions