On 6 July 2018, the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP) will be amended to include the Low Rise Medium Density Housing Code (Medium Density Code). The effect of the Medium Density Code is to expand the scope of what is considered ‘complying development’ under NSW legislation.
The amendments to the Codes SEPP are part of the NSW Government’s overall agenda to increase affordable housing within the State by streamlining the development consent process.
What is Complying Development?
Complying Development is development which can obtain development consent by having regard to and meeting specified predetermined development standards. The predetermined development standards include criteria such as minimum lot size, setbacks, building height and floor space ratio.
A development can only be complying development if it is permitted with consent within that zone. If it is permitted and meets the predetermined development standards, the proposed development can be approved by either Council or a qualified private certifier which issues a complying development certificate.
On average, complying development certificates can be assessed within 22 days as opposed to development applications which are determined on an average of 52 days. This is a key statistic that the NSW Government relies upon to justify the expansion of the definition of complying development. These statistics show that obtaining complying development consent is a more streamlined process that will facilitate quicker approvals and in turn, a greater housing supply.
Despite the above benefits, there can also be disadvantages to expanding complying development. One such disadvantage is the potential increase of ‘standardised housing’ which is designed to ensure it meets the complying development standards. This can have perceived negative impacts on the character and streetscape of particular localities which are left with a lack of diversity in architecture.
Medium Density Code and its Effect
The Medium Density Code will expand Complying Development to allow complying development to include two storey dual occupancies, manor houses and terraces if permitted with consent under that zoning. The operative provision of the Medium Density Code prescribes that complying development is to include:
- any one or two storey dual occupancy, manor house or multi dwelling housing (terraces);
- any attached development or detached development related to any building referred to in (a).
There are some exceptions to this provision such as development relating to construction of roof top terraces, terraces on bush fire prone land and flood prone land.
In light of the introduction of the Medium Density Code, Council should be conscious of what zoning within its Local Government Area will be subject to the expanded Complying Development provisions. It will be important to consider the long term impact of any new potential complying development will have on the character and streetscape on the relevant areas of the Local Government Area.
Council should also be aware that the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) has also been amended to anticipate the introduction of the Medium Density Code. These amendments provide greater powers to Council when issuing a complying development certificate. Specifically, they allow Councils to include the following in complying development certificates:
- impose a condition of the development consent requiring the Applicant to make payment of special monetary contributions for state infrastructure; and
- impose deferred commencement conditions on consent.
In addition to the above additional authority, Council will also be able to issue orders to enforce compliance with a complying development certificate issued. Council will be able to order that work be suspended if there is a suspected breach of either the conditions of the complying development certificate or of the Codes SEPP. These additional powers granted to Councils are intended to provide a check on complying development in light of the greater scope provided by the amended Codes SEPP.