Australia: Into the thick of it: The NSW Low Rise Medium Density Housing Code

Last Updated: 2 June 2018
Article by Peter Holt and Georgia Appleby
Most Read Contributor in Australia, September 2018

Friday, 6 July 2018 will mark the commencement of the Low Rise Medium Density Housing Code (the Medium Density Code). The Medium Density Code will allow one or two storey dual occupancies, manor houses or terraces to be approved as complying development.

What is complying development?

Complying development is a development that can be approved by either the Council or an accredited 'private' certifier by issuing a complying development certificate (CDC). Essentially, complying development is a form of 'fast tracked' assessment.

To be a complying development a development must be permitted with consent in the relevant zone.i Unlike a development application (DA), which is assessed on its merits, a CDC must be issued if the proposed development meets all the development standards (e.g. minimum lot size and frontage, building setbacks, building height, gross floor area and car parking) and the other requirements (relating to things like development on bush fire prone and flood prone land) set out in the Code.ii

The Medium Density Code would, for example, allow a row of two storey terraces with rear lane access to rear garages to be approved as complying development in a low density residential zone.

Filling in the 'missing middle'

The introduction of the Medium Density Code represents the next step in the expansion of complying development which began when the General Housing Code came into effect under the 2008 Labor Government. Since that time, Governments of both persuasions have recognised that increasing the scope of complying development is a key way of boosting housing supply.

In 2008, 8% of development was dealt with as complying, however as at 2015-16, this had increased to 33.2%.iii Up until this point, the forms of residential development that could be approved as complying development under the various codes were relatively small. Only new single storey and two story dwelling houses, and internal alterations and extensions to those houses were permitted to be carried out as a complying development.

The most forceful proponent of the Medium Density Code was the former Planning Minister, Rob Stokes. He was of the view that New South Wales needed more housing to meet the needs of its diverse and growing population. This is because the population is projected to grow by more than 1 million people every year until 2036. Consequently, NSW will need to find homes for an additional 2.1 million residents.

Currently new approvals housing fall into two categories – single dwelling houses and strata titled apartments. Well-designed and suitably located forms of medium density housing - like terraces, dual occupancies, manor homes or townhouses - could serve to fill the missing middle by providing greater housing choice.iv

The pros and cons of complying development

Two major benefits of complying development are certainty and reduced timeframes for assessment. This is because with complying development, if the development meets all the standards and requirements under the Code, the CDC must be issued. The timeframe for assessment is also much shorter because CDCs are not subject to the same sort of notification and public exhibition requirements as a DA. This is because the Code is designed to ensure that provided the development complies with the requisite standards, the impacts will be acceptable. Consequently, CDCs are able to be determined within an average of 22 days, compared with an average of 52 days for DAs.v

From a policy perspective, however, Councils have always been wary of the introduction of anything that would enable private certifiers to approve complying development within their respective local government Historically, the introduction of the General Housing Code in 2008 was met by a concerted campaign from various councils, the Local Government Association of NSW and the Shires Association of NSW to 'Keep It Local'. Similarly, in 2013, when the Government put forward the idea that 80% of development should be determined as 'code assessable', the Planning Bill 2013 stalled in the Upper House and was eventually allowed to lapse.

Council fears about complying development are largely based on three concerns:

  1. what they see as the lack of accountability of private certifiers
  2. the impact of 'cookie cutter housing codes' on local character, streetscape and amenity
  3. although somewhat more privately, the loss of the revenue associated with development application fees.

In response to these concerns, the Government has introduced a two-pronged approach in which they take greater control over design, whilst also making it easier to challenge a CDC.

Firstly, with regards to design, the Medium Density Code will be accompanied by a Low Rise Medium Density Design Guideviideveloped in partnership with the Office of the Government Architect NSW (Guide). The purpose of the Guide is to improve the design of such development by maintaining greater control over design factors such as layout, landscaping, light, ventilation and privacy. The Guide will be integrated into the assessment process through new requirements in the Environmental Planning and Assessment Regulation 2000 which require applications for complying development under the Code to be accompanied by a design verification statement. This statement must be issued by a qualified designer or a person accredited as a building designer by the Building Designers Association of Australia and must address how the development is consistent with the relevant design criteria set out in the Guide.viii

The Government has also amended the Environmental Planning and Assessment Act 1979 to make it easier to challenge CDCs in the Land and Environment Court.ixIt has also foreshadowed the introduction of new temporary stop work order powers for Councils which will give them up to seven days to investigate an allegation that a development is not complying with the requirements of the Code.x These investigations will be funded by a new levy system on complying development which will accompany the stop work order powers.xi

Mixed responses to the draft Code

The introduction of the new Code has not been plain sailing. A draft version of the Code and Guide was publicly exhibited between October and December 2016. Following this, the Code was then published on 6 April 2018 and Councils were given three months to prepare for its introduction.xii

In response to the publication of the Code, both the Council of the City of Ryde (Ryde Council) and Canterbury Bankstown Council (and the local members) lobbied the Government to exclude their local government areas from the operation of the Code.

Following a rather unedifying public spat,xiii the Minister for Planning agreed to defer those local government areas from the operation of the Code until 1 July 2019, or until such time as the Council has undertaken a new Local Housing Strategy and Local Environmental Plan.xiv

Ryde Council, in particular, was concerned about the impact of terraces and manor houses (which are essentially a type of apartment building with no more than two stories and between three to four units) on those parts of the local government area zoned R2 Low Density Residential. Neither terraces, nor manor houses were previously permitted in this zone. Under the Code this would have changed as an amendment to the Ryde Local Environmental Plan 2014 would be made which permitted manor houses with consent in that zone.

In response, the Government, on 18 May 2018, amended to Code to provide that terraces and manor houses can only be carried out as complying development where other forms of medium density development like apartment buildings or multi dwelling housing commonly known as villas (or both) are already permitted with consent under Council's local environmental plan.xv

Press reports suggest that other Councils have been invited to seek to apply to defer the application of the Code.xvi

The loss of both Ryde and Canterbury-Bankstown from the operation of the Code are not inconsiderable concessions. Those councils head the list of councils with the highest dwelling targets within metropolitan Sydney for their respective districts. According to newspaper reports, the expansion of complying development and other rezonings within those local government areas is now on hold pending the outcome of a Local Housing Strategy and a new Local Environmental Plan. The experience has been that these processes can take five to six years to be completed.

What to expect as we near commencement

Further concessions aside, the Code will come into effect from 6 July 2018. While we should anticipate some troubleshooting in the first six to 12 months, the Code is here to stay. Not least because we need these forms of housing more than ever, particularly within metropolitan Sydney, but also because the Government's central focus is on making housing more affordable.xvii For those reasons, expanding what can be done as complying development makes good public policy sense.


iSection 4.2 of the Environmental Planning and Assessment Act 1979.
ii Section 4.26 of the Environmental Planning and Assessment Act 1979.
iii'Local Development Performance Monitoring Data Highlights 2015-16', Department of Planning and Environment, 18 October 2017 (accessible at
ivStokes, Rob 'The Missing Middle will no longer be M.I.A' published on 17 October 2016 (accessible at
v 'Local Development Performance Monitoring Data Highlights 2015-16', Department of Planning and Environment, 18 October 2017 (accessible at
vi Complying development was introduced in the EP&A Act in 1998.At this time councils were given the opportunity to create their own requirements to identify development as complying, however few did.
vii 'Low Rise Medium Density Design Guide', Department of Planning and Environment, 2017 (accessible at
viii Environmental Planning and Assessment Amendment (Low Rise Medium Density Housing) Regulation 2017.
ix Section 4.31 of the Environmental Planning and Assessment Act 1979.
x Second Reading speech for the Environmental Planning and Assessment Amendment Bill 2017, 18 October 2017.
xi Second Reading speech for the Environmental Planning and Assessment Amendment Bill 2017, 18 October 2017.
xii 'New Code to deliver well-designed housing option', Minister for Planning, 6 April 2018 (accessible at
xiii'Manor Homes – The Facts' and 'NSW Government Housing Code – The Real Facts', Weekly Times, 2 May 2018.
xiv 'NSW Government defers new Housing Code', City of Ryde, 15 May 2018 (accessible at
xv State Environmental Planning Policy (Exempt and Complying Development Codes) Amendment (Low Rise Medium Density Housing) Amendment 2018.
xvi Saulwick, Jacob 'Missing muddle: government gives ground on terrace housing plan', Sydney Morning Herald, 18 May 2018 (accessible at
xvii 'Making housing more affordable', NSW Government, 22 December 2017 (accessible at

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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.

Peter Holt
Similar Articles
Relevancy Powered by MondaqAI
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 Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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