Introduction

Recent changes to the NSW State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes) have the potential to significantly reduce approval time frames and costs for commercial and industrial businesses, by expanding the types of development included in the Codes. 

New types of development included in the Codes are:

  • external alterations and extensions to the rear of existing commercial premises:
    • for retail uses, of up to 1000m² or 50% of the gross floor area of the existing premises, whichever is the lesser;
    • for offices and business premises, of up to 2,500m² ;
  • new industrial buildings up to 20,000m² and additions to existing industrial buildings of up to 5,000m²;
  • specified changes in use of premises;
  • 24 hour trading hours for retail businesses, located in business zones in the two weeks leading up to Christmas; and
  • signage.

This article outlines some of the major areas of change and identifies some important limits on, and preconditions to, the applicability of the Codes in particular cases. 

Where they apply, the Codes can facilitate greater flexibility for commercial and industrial businesses and provide opportunities for landowners to maximise the value of their existing assets in a time and cost efficient manner.

What are the Codes?

The Codes set out the types of development which are exempt or complying development, doing so through detailed objective criteria and development standards. Whether development can constitute exempt or complying development will depend on the relevant development type. 

Exempt development is development that does not require consent (approval) under the Environmental Planning and Assessment Act 1979 (EPA Act). If the development meets the criteria for exempt development, then no further EPA Act approval is required.

Complying development is a type of development that requires consent, which is obtained through a complying development certificate (CDC) rather than via a development consent. A CDC involves a much quicker and simpler process than other forms of development approval under the EPA Act and may be obtained from a private certifier or from the relevant Council. 

The Codes set out specific development standards that must be adhered to in order for the development to be considered exempt or complying development. These standards include controls such as maximum gross floor area, height and floor space ratios (FSR), setbacks, car parking requirements and design specifications. The standards differ depending on whether the development is for retail, commercial or industrial purposes and also differ depending on the specific characteristics of the site.

Generally, the development must be for a lawful use and must not be an existing use.

If no hours of operation are outlined in the existing development consent, the Codes prescribe hours of operation, as follows:

  • for commercial buildings and new industrial buildings: 7:00am – 7:00pm for Monday to Saturday and 9:00am – 6:00pm Sunday; and
  • for alterations to existing industry buildings: 7:00am – 10:00pm Monday to Sunday.

Further detail regarding the changes is set out below.

External alterations and extensions to rear of commercial buildings

External alterations and extensions to the rear of commercial buildings will be complying development if undertaken on land zoned within business zones, B1 to B7.

Key development standards which apply to this type of development include:

  • FSR of no more than:
    • the FSR under applicable environmental planning instrument; or
    • if no applicable FSR control exists, 1:1
  • further controls for height and setbacks.

Car parking is to be provided in accordance with the relevant environmental planning instrument, such as a local environmental plan. 

New buildings and additions to industrial buildings

New buildings and additions to industrial buildings will be complying development if undertaken on land zoned industrial IN1 to IN4. This applies to:

  • new buildings for the purpose of industry, warehouse or distribution centre (other than heavy industry);
  • additions; and
  • external alternations.

Key development standards include standards that the:

  • development does not involve the clearing of more than 1,000m² of native vegetation;
  • floor area of any addition for an ancillary office or industrial retail outlet must not be more than 20% of the total gross floor area; and
  •  maximum height of buildings being added to or altered must not be more than the height applicable under the environmental planning instrument, or 15m, whichever is less.

Alterations to existing commercial and industrial buildings

The Codes provide for certain internal building alterations to be classified as complying development. In order to fall within these provisions, the alteration must not result in an increase in the FSR. 

These changes potentially allow for a wide range of internal alterations, including fit-out and minor ancillary development, to occur at most existing commercial and industrial buildings. These changes may be of particular interest to businesses which are also seeking to change the use of a premises under exempt or complying development , discussed in more detail below. 

Change of use categories expanded

The Codes also expand the categories of change of use which can now be dealt with as either exempt development or complying development. In general terms, the Codes will apply to changes of use where the proposed new use is of similar or lesser intensity to the current use.

Examples include changes from:

  • a shop to another shop or kiosk;
  • light industry to packaging industry; or
  • bulky goods premises to hardware and building supplies.

Both the existing and proposed uses must be permissible with consent in the relevant zone. The change of use must not contravene a condition of the existing development consent dealing with issues such as noise, car parking or delivery times.

If no hours of operation are contained in the existing development consent, the prescribed hours of operation are between 7.00am and 7.00pm on any day.

Extensions of trading hours for the 2 weeks leading up to Christmas

Retail or food and beverage premises in business zones will now be able to trade for 24 hours a day in the two weeks prior to Christmas Day as exempt development. 

Previously, many businesses had to apply for specific permission to operate with extended Christmas trading hours each year. Whilst these amendments, where they apply, mean that additional permission is not required, businesses will still need to comply with the conditions of any applicable development consent regarding loading and deliveries during usual business hours.

There are a number of important restrictions on when these extended trading hours provisions are available. For example, they will not apply to retail premises in a mixed use development which have a residential use above, below or on the same floor of the building.

Advertising and Signage

The Codes allow for the following types of signs to be considered exempt development:

  • building identification signs;
  • replacement signs;
  • internal signs; and
  • community notice and public information signs.

Under the Codes there can be no more than three signs for buildings with a single commercial tenant and no more than six signs for any building. The Codes set further standards for the location and size of signs. 

Further information

Further information about the Codes is available on the NSW Planning and Infrastructure website here