How does this affect you?  

On 7 September 2009, a new state wide regime for exempt and complying development relating to commercial and industrial premises will commence. These provisions will improve the approval processes for many forms of minor commercial and industrial development including changes of use of premises.

In this update, we provide you with a summary of the main forms of exempt and complying development, contained in the Code SEPP, that are relevant to the commercial and industrial premises. We also summarise the main development standards that will need to be met in order to benefit from the exempt and complying development provisions, and identify the circumstances in which the Code SEPP will not apply.

Overview  

The General Commercial and Industrial Code, which was recently gazetted by the Department of Planning, will form part of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Code SEPP).

The Code SEPP was released in February 2009 with the aim of streamlining the assessment process for exempt and complying development across New South Wales. The Code SEPP currently applies to certain forms of residential development, but will be extended to include provisions applying to commercial and industrial premises from 7 September 2009.

Development that falls within the definition of ‘exempt development’ under the Code SEPP will be able to be carried out without development consent. The Code SEPP definition of ‘exempt development’ incorporates certain changes of use of premises and minor internal and external building alterations. To qualify as exempt development, the development standards specified in the Code SEPP will need to be met.

Development that falls within the definition of ‘complying development’ under the Code SEPP can be authorised by obtaining a complying development certificate (issued by either a private certifier or council). In practice, this is likely to be a cheaper and quicker mechanism for approval compared to the traditional development application process. Complying development under the Code SEPP extends to several changes of use and several forms of building alterations.

Exempt Development  

Development will only be ‘exempt development’ under the Code SEPP if it is of minimal environmental impact and is not carried out in a wilderness area or area of critical habitat. ‘Exempt development’ must also meet the deemed-to satisfy provisions of the Building Code of Australia (BCA), and not be proposed on land that has a heritage item or heritage order over it.

If these pre-conditions are met, then development will be ‘exempt development’ if it falls within one of the specified categories of ‘exempt development’ in the Code SEPP and if the relevant development standards (which are set out in the Code SEPP) are met. Examples of the specified categories of exempt development include change of use from:

  • business premises to another type of business premises
  • business premises to office premises
  • office premises to another type of office premises
  • office premises to business premises
  • retail premises to another type of retail premises (but not to
  • food and drink retail)
  • bulky goods premises to another type of bulky goods premises
  • light industry to another type of light industry
  • warehouse or distribution centre to another type of warehouse or distribution centre
  • light industry to warehouse or distribution centre
  • warehouse or distribution centre to light industry.  

In summary, the relevant development standards are:

  • the current use of the premises must be a lawful use (not based on existing use rights)
  • the new use must be permissible within the land use zone
  • the new use must not result in a change of building use
  • the new use must not be a food and drink premises, funeral chapel, retail premises with firearms, landscape and garden supplies, market, beauty or hair salon, skin penetration premises, restricted premises, roadside stall, sex service premises, and vehicle sales or car hire premises.  

Some forms of minor building alterations may also constitute exempt development.

Complying Development  

Internal alterations  

Internal alterations to bulky goods premises, commercial premises, light industry premises, warehouse or distribution centres, will be ‘complying development’, if the relevant development standards are met. These are:

  • the current use of the premises must be a lawful use (not relying on existing use rights)
  • the alterations must not result in an increase in the gross floor area of the building
  • if alterations involve a loading dock, areas for trucks, goods handling, waste handling, and manoeuvring must not be reduced
  • alterations must not relate to cooking of food at premises by barbeque or charcoal methods
  • if the alterations involve food and drink premises, relevant Australian Standards for food premises must be met any demolition required must be carried out in accordance with relevant Australian Standards
  • if alterations involve bulky goods premises, and an area of more than 500m2, certain Building Code of Australia standards must be met
  • if the building being altered is subject to an ‘alternative fire safety solution’, the alterations must be consistent with the alternative solution.
  • if alterations are to a mixed use building with a residential component, various fire resistance requirements must be complied with

Internal alterations to buildings covered by the Code SEPP which satisfy these development standards can be approved via a complying development certificate.

Changes of use

The following changes of use will be ‘complying development’ (if the relevant development specifications are met):

  • bulky goods premises to another type of bulky goods premises
  • commercial premises to another type of commercial premises
  • light industry to another type of light industry
  • warehouse or distribution centre to another type of warehouse or distribution centre
  • warehouse or distribution centre to light industry
  • light industry to ancillary office
  • warehouse or distribution centre to ancillary office.  

In addition to the development standards summarised above, there is also a requirement for complying development that the new use not contravene any existing conditions of the most recent development consent relating to hours of operation, car parking and landscaping. Where the current development consent does not stipulate hours of operation, standard hours of operation will be prescribed.

Transitional provisions  

The Code SEPP contains important transitional provisions which govern the first year of operation of the Code SEPP. The transitional provisions identify when the Code SEPP will apply and when exempt or complying development provisions in other environmental planning instruments (such as local environmental plans) will apply. These transitional provisions operate up until 27 February 2010.