Hamptons House - Complying Development

Hamptons House - Complying Development

Architect designed homes, Sydney

Northern Beaches | Eastern Suburbs | North Shore

We design high-quality new homes, additions, renovations, extensions, and regularly use complying development to achieve quicker approvals.

Adam Pressley FRAIA
Principal Architect

Complying Development (CD) vs Development Application (DA)

Both approval types have the good and bad points.

This guide compares some of the main differences, definitions, processes and outcomes. Without a specific project it's not possible to compare precisely across different controls.

The Complying Development code compare below is Part 3 Housing Code - Exempt & Complying Development Codes.

Please note that this is not a substitute for legal advice, and the advice provided may not be correct in all applications. As legislation is always evolving, you will need to confirm the specific details with your own research at the time it is relevant.

No responsibility is accepted for omissions, differences in interpretation or changes to the legislation over time.

Approval process - CD

Complying Development is a tick the box solution provided by the NSW Government and generally and objective assessment.

Complying Development is commonly assessed by a Private Certifier, but may also be similarly assessed by the local Council, and is lodged via the NSW Planning Portal.

Complying Development is a construction approval similar to a Construction Certificate, so building work can start after a 2 day notice period.

Complying Development - Comprehensive Guide by NSW Planning, August 2022

Approval process - DA

Development Approval is merit based assessment, or subjective assessment.

Development Approval is assessed by the local Council, and is lodged via the NSW Planning Portal.

Development Approval is a design approval and requires a separate Construction Certificate before any building work can commence.

Development Application Process - Guide by NSW Planning, May 2018

Applicable codes - CD

There are a number of State Environmental Planning Policies (SEPP's) and some have more than one code. The most common SEPP's for housing include the Exempt & Complying Development Codes 2008;

Part 2 Exempt Code

Part 3 Housing Code (this is the code compared here)

Part 3B Low rise Housing Diversity Code

Affordable Rental Housing Code

Applicable codes - DA

Development Approval is granted by the local council, and each has their own Local Environment Plan(s) (LEP's). Plus, as a lower level control there are also many Development Control Plans (DCP's) that have specific controls and requirements, for example;

Manly (Northern Beaches Council) LEP 2013

Manly (Northern Beaches Council) DCP 2013

Standard Instrument

Approval time - CD

Usually 21 days, but can be longer.

If there is a problem achieving the approval, (depending on the problem), the application can usually be amended, resubmitted and the approval process can continue, within a few days.

However, there can reasons, or 'non compliances' that make approval impossible under this code. It's important to obtain a Section 10.7 Planning Certificate from your local council prior to seeking approval.

Approval time - DA

Commonly 2 - 6 months but can be much longer.

It is supposed to be within 42 days, which is the 'deemed refusal time', however applications can be going for years.

If an application is rejected, then there are options such as Section 8.2 Review, Section 4.55 Modification / Correction. Further, a legal challenge via the Land and Environment Court (LEC) is also possible, but only if the application is less than 6 months old.

Non compliances - CD

Non compliances are not allowed under complying development. If even one thing does not comply, then the whole CD is not allowed, and cannot proceed.

This can be a frustrating as it may take a while to uncover the reason for non-compliance, and the CDC documentation process is more involved in some ways than a Development Application.

Also strict non compliance may be a matter of opinion or interpretation, and different certifiers may not agree, so there may be reason to seek an opinion other certifiers, the Department of Planning, or get a legal opinion.

Non compliances - DA

Non compliances may be allowed under a Development Application, as it is merit based process and every point can be argued on merit with a planning report called the Statement of Environmental Effects.

In some cases the council will require a Section 4.6 Objection (formerly a SEPP 1) be lodged to support a variation to compliance under the LEP.

Projects can be approved with multiple non-compliances, but also a fully compliant proposal may still be refused, based on merit.

Approval problems - CD

Firstly we have some basic exclusions that don't allow complying development, but note this list is not exhaustive;

~ Lots not zoned R1, R2, R3, R4, or RU5

~ Block sizes less 200 sqm or 6m wide, not allowed

~ More than 2 storey's or more than 8.5m in height

~ Foreshore area - but 'Foreshore Scenic Protection' is ok

~ Bushfire affected - BAL 40 or BAL FZ not allowed

Then we have parts of the complying code that are either difficult to comply with, or may lead to poor outcome;

~ Side / rear above ground decks, verandahs ...

~ First floor living rooms (upside-down houses)

Approval problems - DA

Being merit based, the DA approval process has more to consider and relies more on design and planning expertise to mitigate negative effects. The following items can be very problematic, but are not required under complying development;

~ Overshadowing - loss of sun to neighbours

~ View sharing - or view loss assessment

~ Neighbour notification - objections carry weight

~ Arborist issues - where trees are retained

~ Streetscape issues - bulk, scale and design

Gross Floor Area (GFA) - CD

Floor area is controlled under Complying Development with the use of a table of formulas for different block sizes. Under Complying Development, GFA is measured to the outside of external walls, and there are also some exclusions.

A couple of examples;

~ A min. size 200 sqm block the max. GFA is 156 sqm

~ A block larger than 1500 sqm is restricted to 400 sqm

Gross Floor Area (GFA) - DA

Floor area is typically controlled by each council for different zones, and each has a table of formulas for different block sizes. Under a DA, GFA is measured to the inside of external walls, and there are also some exclusions.<

Many councils may allow up to 10% more GFA than the maximum in the DCP, provided there is not significant environmental impact.

Under a DA you can also propose to exceed the allowed GFA, if you are reducing it from it's current level.

Which approval process is best for you?

Often the choice is quite simple, because there are simple reasons why Complying Development (CD) is not suitable, even if it is not excluded outright as an option, and then you are left with a Development Application, which may give you a better result in the end.

These are the sorts of things we can advise you on during our Initial Service on site meeting.

Over time I hope to add more comparisons and further highlight where Complying Development is worth pursuing.

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