Newly expanded exempt and complying development codes will commence next week

Planning eBulletin - 21 February 2014

Summary

A range of changes to the codes and regulations that govern exempt and complying developments will come into effect on 22 February 2014.

The changes include new complying development codes for industrial and commercial development, new conditions of approval and new fire safety requirements which apply to the redevelopment of certain existing buildings.

In this eBulletin we highlight some of the new commercial and industrial codes and fire safety requirements.

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New complying development codes

Two new complying development codes have been introduced through amendments to the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP) and Environmental Planning and Assessment Regulation 2000.

New commercial and industrial buildings and additions

The new Commercial and Industrial (New Buildings and Additions) Code (Part 5A of Codes SEPP) will apply to new industrial buildings and additions to existing commercial and industrial buildings. It provides that a number of new categories of development will be complying development, including:

  • construction of new industrial buildings up to 20,000m2;
  • additions to existing industrial buildings up to 5,000m2 on industrial zoned land; and
  • additions to the rear of existing commercial premises up to 50% of the existing floor area (but no more than 1,000m2 for retail uses and 2,500 m2 for commercial offices and businesses).

Restrictions imposed by the new code include:

  • a development cannot be complying if it requires the clearing of more than 1,000m2 of native vegetation; and
  • new buildings and additions will be subject to the maximum height limit and floor space ratio specified in the relevant council's local environmental plan (LEP).

Commercial and industrial alterations

The new Commercial and Industrial Alterations Code (Part 5 of Codes SEPP) will allow for a wide range of internal alterations to most existing commercial and industrial buildings. Notably, it will also expand the types of changes of use that are considered to be complying development.

The purpose of this change is to facilitate first use and initial fit-out of buildings and the construction of minor ancillary developments.

In particular, the new code will allow for new uses that are of similar or lesser intensity to the current use. Further, where a development consent for the current use does not determine issues such as hours of operation and car parking, the code will provide appropriate standards to be met.

 

New conditions of approval

Conditions for approval for complying developments have been revised and standardised so as to minimise impacts on the environment and prevent damage to adjoining areas during construction.

Complying development under certain commercial and industrial codes will be subject to the conditions set out under Schedule 8 of the new Code SEPP. These may include conditions relating to easements, traffic impacts, contamination and impact on adjoining properties.

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New fire safety reporting requirements

From 22 February 2014 the Environmental Planning and Assessment Amendment (Complying Development and Fire Safety) Regulation 2013 will also commence. This will introduce new fire safety reporting requirements which will apply to complying development if:

  • the work involves a change of building use of an existing building; or
  • the work involves the alteration, enlargement or extension of an existing building

AND

  • the building was erected before 1 January 1993; and
  • the development is of an area more than 500m2.

An application for a complying development certificate must be accompanied by a report which must:

  • be prepared by an independent accredited certifier;
  • assess the building's compliance with the Building Code of Australia (BCA), as well as any orders made by the local council;
  • provide recommendations about works needed to bring the building into compliance; and
  • provide recommendations about the upgrading of the building, for example, what measures are appropriate to protect persons using the building from fires, to facilitate their egress from the building in the event of a fire, and to prevent fire from spreading to nearby buildings.

These requirements will be waived where the council or accredited certifier is satisfied that the existing building has been upgraded so as to bring it into partial or total conformity with the fire protection and resistance requirements of the BCA.

 

Will the amendments apply to pending applications?

The amended provisions and conditions set out above will only apply to applications for complying development made after 22 February 2014.

Any applications lodged prior to this date that are not finally determined will be determined in accordance with the pre-amendment code provisions and conditions.

 

Conclusion

The amendments widen the scope of the type of commercial and industrial developments that can be carried out as exempt or complying development. As a result, the amendments may decrease the costs and ‘red tape’ associated with carrying out certain commercial and industrial development.

However, businesses should carefully consider the restrictions imposed under the new Codes and the requirements of the relevant LEP in order to be sure that a development will be categorised as complying development before proceeding.

Authors
Reiteke Grosser | Lawyer
Breellen Warry | Senior Associate

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