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08 April 2018

State Government Expands Complying Development

During 2017 the State Government proposed 2 new codes to expand the range of development which could be carried out as complying development under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP).

The amendments to the Environmental Planning & Assessment Act 1979 (EPA Act) which commenced on 1 March 2018 made changes to the provisions of the EPA Act regarding complying development, suggesting that the Government would proceed with its plans to expand the scope of complying development.

Today the government made a state environmental planning policy which from 6 July 2018 will amend the Codes SEPP so that one and two storey dual occupancies, manor houses and terrace housing can be carried out as complying development.

New Medium Density Code

The Codes SEPP will be amended to include the Low Rise Medium Density Housing Code (Medium Density Code), which can be found here.

The key operative provision of the Medium Density Code is that the erection, alteration of, or addition to any of the following types of development is complying development:

(a)  any one or two storey dual occupancy, manor house or multi dwelling housing (terraces);

(b) any attached development or detached development related to any building referred to in (a).

The Standard Instrument – Principal Local Environmental Plan will be amended to include new definitions of ‘manor house‘ and ‘multi dwelling housing (terraces)’ to give effect to the above provision.

To be complying development, the land on which such a development is proposed will need to be zoned RU5, R1, R2 or R3, being zones in which medium density housing is typically permissible, and the land must have frontage to a public road on completion of the development.

There are some exclusions, such as development that involves construction of a roof top terrace, development on a battle-axe lot, or terrace housing on bush fire prone land.

There are detailed development standards in the Medium Density Code which must be complied with for the development to be complying development.

The Torrens title subdivision of land on which a dual occupancy or terrace housing is to be built is also complying development, provided no part of any dwelling is above another dwelling. That is, the dual occupancies must adjoin each other laterally, rather than be on top of each other.

One application can propose both the dual occupancy or terrace housing, and also the subdivision. There are minimum lot sizes prescribed.

The Medium Density Code will also require compliance with the Medium Density Design Guide which can be found here.

EPA Act Amendments

As mentioned above, the amendments to the EPA Act foreshadowed an expansion of the use of complying development.

A complying development certificate  (being the approval granted for complying development) (CDC) can now contain:

  • a condition requiring the payment of special infrastructure contributions, being monetary contributions towards state infrastructure; and
  • a deferred commencement condition, being a condition which is to the effect that the CDC does not operate until some other matter has been satisfied.

In addition, a planning agreement can now be entered into in connection with an application for a CDC.

Councils and the Courts also have greater powers to enforce compliance with CDCs and the Codes SEPP through the suspension of work pursuant to a CDC in the event of a suspected breach of development standards, and the ability to strike down a CDC if it has been issued for development which is not properly considered by the Court to be complying development.

It is understood that the Government is likely to make a further code for development in greenfields (or undeveloped) areas to be carried out as complying development in the near future. 

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State Government Expands Complying Development 08 April 2018

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