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Exempt Development: Development without approval

Exempt Development has existing in NSW since 1993 and allows certain low-impact forms of development to be undertaken without undergoing the rigorous approvals process. In the last few years the Department of Planning has attempted to promote awareness of exempt development; both it and the similar streamlined-approval process of Complying Development are seen as tools to reduce the demands of numerous development applications. Exempt development is governed by the SEPP (Exempt and Complying Development Codes) 2008 which lists an array of different forms of exempt development and the specific requirements of each.

Provided that a type of development is listed in the Exempt Development Codes, it does not involve land that prohibits exempt development and the development is carried out in accordance with the Exempt Development Code, then a person may carry out that development without obtaining development consent.

The types of land that do not allow Exempt Development are those that typically have very stringent planning requirements, including land that is critical habitat of an endangered species, population or ecological community, a wilderness area (as per the Wilderness Act 1987) or involves a State heritage item listed on the State Heritage Register (or an interim heritage item). Some areas, including specific lots in Mattraville, Warwick Farm, Mulgoa and near Tomerong have specific exclusions on Exempt Development, whilst land located near Sliding Spring Observatory (located around Warrumbungle) has some restrictions on Exempt Development involving lighting.

Exempt Development must be carried out under certain conditions, the most significant of which is that the development must be of minimal environmental impact. Where relevant (such as the construction of new buildings of alteration of existing building) the development must comply with the Building Code of Australia. Finally, there will certain restrictions depending on the type of development being carried out. For example, installing a flagpole is Exempt Development so long as the above requirements are met and it meets these specific criteria:

  • Must be free standing
  • Maximum height of 6m above ground level
  • Maximum diameter of 90mm
  • Minimum distance of 3m from a side or read boundary
  • Only 1 flagpole per lot
  • Must not be used to fly a flag larger than 2.5m2
  • Must not be used for advertising.

The types of exempt development are extensive and include many common improvements and uses such as:

  • Access ramps
  • Air-conditioning units
  • ATMs
  • Carports
  • Fences
  • Fowl and poultry houses
  • Hot Water systems
  • Letterboxes
  • Playground Equipment
  • Rainwater Tanks
  • Tennis Courts
  • Sculptures and artworks

The above list is only a small selection of the types of Exempt Development. The State Government recently produced a tool called “Interactive Buildings” in order to better educate the public about what types of development may constitute Exempt Development and what specific restrictions apply to each.

The types and requirements of Exempt Development occasionally change, the most significant change currently being pushed by some groups is to include short-term accommodation (such as AirBnB) as Exempt Development to ease the use of such services. It is a good idea to stay informed of the state of Exempt Developments if you are planning on undertaking any development that might not require approval. If you are unsure if your development requires approval, it is a good idea to either speak to your local council or a legal professional to find out.

Paul Carroll, Partner

Alex Collie, Lawyer

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