Building, Extending & Renovating with the Exempt & Complying Development Legislation

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 Building, Extending & Renovating with the Exempt & Complying Development Legislation

Preface

Building, extending or renovating couldn’t be easier now with the NSW Government’s relatively new Exempt and Complying Development Legislation which can provide 10 day building approvals. This legislation is also known as the NSW Housing Code. Many home buyers can now obtain building approvals within 10 days if their home designs comply with the design criteria of the legislation. It’s simply, fast and saves home owners substantial sums of money by avoiding delays, costly consultant reports and time consuming approval processes through the local Council.

The traditional Planning System

Each Local Government Area has a Local Environmental Plan (LEP). The LEP identifies land uses and zonings (detailing whether a property can be used as residential, commercial or industrial), soil conditions, heritage information, floor space ratios, maximum building heights, foreshore building lines and other important building information for properties affected by this document.

Recently, the NSW Government introduced standard LEP templates which all Councils in NSW are required to adopt. Prior to this, building standards varied across Local Council areas. In extreme cases, where a road formed the boundary between urban local government areas, building heights and land uses one side of a road could vary dramatically to the other side of the same road. This created confusion, inequity and increased costs for home owners and builders. Therefore, the reasoning behind standardising LEP’s was to create a benchmark of standard building criteria for properties across all local government areas in NSW. Currently, these new template LEP’s are being transitioned in Local Government areas across NSW.

Underpinning LEP’s are Development Control Plans (DCP’s). A development control plan (DCP) is a commonly used town planning document which provides detailed guidance for the design and assessment of new development. A DCP provides town planning controls which aim to produce a high standard of design to improve the overall environmental amenity and liveability of an area.

In particular, specific dimensions are expressed for setbacks form boundaries, building alignment and building heights. Other criteria such as building bulk, streetscape and landscaping are also detailed in DCP’s. These and other criteria can differ from one local government area to another.

Both LEP’s and DCP’s are developed in consultation with the community. Local Government is usually responsible for preparation of an LEP. There are however exemptions to this. In some situations it is not unusual for the State Government to take responsibility for this step in the LEP formulation process. This is usually the case where the LEP to be produced is of state significance or is controversial. The consultation process with the community is extensive and occurs over many months and in some cases over many years. There are many changes, deletions and iterations of an LEP as it progresses through the consultation phase of its formation. Eventually the LEP is finalised and submitted by the Local Government Area to the State Government for assessment, modification if required, vetting by senior legal counsel and ultimately for approval by the Minister for Planning. DCP’s a also subjected to an exhaustive formulisation and approval process. The difference being that the ultimate approval authority of a DCP is the elected Council of the Local Government area.

Notwithstanding the extensive consultation process and formulisation process of an LEP and DCP, prior to the introduction of the Exempt & Complying Legislation, anyone wishing to develop a property would need to lodge a Development Application (DA) and subsequently a Construction Certificate with the Local Government Area Council. The DA, once lodged would then proceed through a complicated assessment and consultation exercise that could in many cases extend over many months and in some cases years. Having run this gauntlet many DA’s could be rejected at the end of this process costing the applicant large sums of money and time. In these circumstances many applicants then have no choice but to appeal this decision in the Land & Environment Court. Success in this jurisdiction is quite good but is extremely costly ($30,000 to $40,000). Given that plans and supporting documents for a new two storey home could cost in the order $15,000 final approval costs could represent 10-15% of the total cost of a project.

The Theory Behind the Science for Complying Developments

So is it reasonable for a home owner to be forced to spend 10-15% of their project budget on a DA approval? Is it necessary to have a DA assessed and advertised if it complies with LEP and DCP of the Local Government Area, particularly given that these documents have undergone an extension consultation and approval process in their own right? It would not be unreasonable to state that the average person would say that it is unacceptable to have to be exposed to such high costs for building approval and to have to undergo additional consultation for a development that complies with the local planning instruments.

Imagine the stress of waiting for your local Council to advise you on the progress of your application. Imagine the stress of dealing with and having face complaining neighbours. Imagine having to compromise on your home design because of the neighbours complaints’, even if the design was a complying design! Imagine if after all this your DA was rejected!

It is with the above in mind that the Exempt and Complying Legislation was developed and introduced. The theory is that a complying design should not need to be advertised and subjected to the scrutiny of non-professionals. The basis for this is the vigorous consultation and approval process of LEP’s and DCP’s. Given that the community and the Government have endorsed the design criteria in the documents one would argue that project designs that comply with these criteria need not be assessed again at the DA stage by the public. The DA need only be assessed by an authorised professional for compliance.

The Housing Code

One could argue even further and state that LEP’s and DCP’s for common building projects should be same despite of their location or local government area in NSW. Hence, the reason for the introduction of the Standard LEP template, the Standard DCP structure and definitions and the NSW Housing Code.

This amazing and far reaching piece of legislation has for the most part, flown under the radar of most property owners, builders and developers. It has reduced the red tape, lowered costs, reduced assessment times and removed the emotion in the building assessment and approval process.

Written By:

Pasquale Romano

BE(civil), Grad Dip (Mgt), Dip Bldg & Const,

Charter Professional Engineer, FIE(Aust), NPER

Phone: 02 8060-1891 Mobile: 0411 55 13 49

Managing Director of Insignia DesignCorp Pty Ltd

27th March 2011

DiscussionOne Comment

  • Pasquale Apr 21, 2011 

    Hi there
    Sorry, I’m not on facebook. Was considering goingon it, but wasn’t sure about privacy.

    Reply

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