Exempt, Complying, and Development Application Projects NSW
Planning a new deck, a granny flat, or even a full home renovation in New South Wales can feel overwhelming before you even pick up a hammer. The first, and critical hurdle, is understanding the approval requirements under the Environmental Planning and Assessment Act 1979 (EP&A Act) and the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP).
Fortunately, not all projects are assessed the same way. The NSW planning system offers three main approval paths, designed to streamline the process based on how complex or large your project is. Understanding which path your project falls into – Exempt, Complying Development, or a full Development Application – is key to saving time, money, and a lot of stress.
This article provides a simple overview of the various pathways. The information is general only and not a substitute for comprehensive professional advice. Navigating the NSW planning system can be complex, and getting early legal or planning advice is the safest option.
Three Planning Pathways in NSW
1. Exempt Development
Exempt Development is for minor, low-impact work that can be carried out without any formal planning or building approval from a council or private certifier, provided it complies with strict standards in the Codes SEPP.
What are the Rules?
To qualify as Exempt Development, your project must comply 100% with all specific size, height, and location standards set out in the Codes SEPP. Typical thresholds include:
- Sheds and decks must be below certain maximum sizes (e.g., decks often limited to under 25m² and 1m in height above ground level).
- The work must not be on certain excluded land (such as heritage-listed, bushfire-prone, or flood-affected sites).
Common Examples
- Carports and gazebos
- Small garden sheds or cubby houses
- Minor internal renovations not involving structural change (e.g., replacing kitchen cabinets)
- Building a low fence (subject to maximum height)
Key Takeaway
You do not lodge an application, but you must check every rule on the NSW Planning Portal to ensure your work qualifies for exemption. Missing even one rule means the project is not exempt and is technically unlawful without proper approval.
2. Complying Development: The Fast-Track Option
A Complying Development Certificate (CDC) is a combined planning and construction approval for straightforward projects, assessed strictly against the Codes SEPP.
How Does it Work?
A CDC can only be issued if the proposed works fully comply with every development standard under the Codes SEPP and other requirements of the EP&A Act and Regulation. The assessment is not discretionary – approval must be granted if all criteria are met.
Who Approves It?
Either your local Council or an Accredited Private Certifier may issue a CDC under the Codes SEPP and the EP&A Act.
Timeframe
Applications are typically determined within 10-20 business days, with a statutory maximum of 20 days if all necessary information is provided.
Projects Suited to Complying Development
- New single, or double-storey homes (if design fully complies with all standards – height, setback, floor space, etc.)
- Granny flats (secondary dwellings)
- Swimming pools
- Straightforward additions/alterations (e.g., single new story)
- Demolition
Complying Development is not available if:
- The site has certain exclusions (heritage-listed, high bushfire risk such as BAL-40 or Flame Zone, significant flood risk).
- The proposed design breaches even one nominated standard (e.g., slightly over height limit).
- A private covenant is present (Note: A CDC can technically be issued even if a private covenant is breached, but carrying out the works may expose you to civil enforcement by other parties with the benefit of the covenant – this is separate to planning law enforcement).
3. Development Application (DA): The Full Review
A Development Application (DA) is the standard pathway for projects not eligible for exemption or complying development.
How Does it Work?
A DA is lodged with and assessed by your local Council as ‘consent authority’. Assessment is on the proposal’s merit, with reference to the Council’s Local Environmental Plan (LEP), any relevant SEPPs, and the Development Control Plan (DCP).
Flexibility
The DA pathway is flexible – variations from controls (such as extra height or reduced setback) can be sought via a ‘Clause 4.6’ variation (must show compliance is ‘unreasonable or unnecessary’ and that objectives are met).
Neighbour Consultation
The Council’s Community Participation Plan (CPP) will set out the minimum public exhibition or notification requirements (typically at least 14 days, but in some cases may be longer or not required depending on the project type).
Projects Suited to a DA
- Custom-designed or complex homes
- Developments on heritage land or conservation areas
- Large/multi-unit or non-residential developments
- Projects needing flexibility not possible under complying development
Timeline Expectation
A DA is a more detailed, merit-based assessment and typically involves longer timeframes – anywhere from three to six months or more for complex developments. Significant projects have mandatory exhibition periods (at least 28 days for state-significant development).
Determining Your Pathway
- Check property constraints: Obtain a Section 10.7 Planning Certificate (formerly s149) from your local Council. This will identify zoning and whether your property is heritage-listed, bushfire-prone, or flood-affected.
- Consult the Codes SEPP: Review your proposed design against the detailed rules to determine whether your project is exempt, complying, or requires a full development application (your designer or a certifier can help).
- Get professional advice: Early consultation with a qualified certifier, planner, or legal adviser is essential to select the fastest lawful path and avoid costly redesigns later.
Key Takeaways
- Exempt Development is for very minor works strictly meeting all criteria.
- Complying Development is the quickest formal approval but requires 100% compliance with strict planning standards.
- Development Application is available for complex developments, constraint-affected properties, or proposals needing flexibility.
Disclaimer
This information is provided for general guidance only and does not constitute legal or planning advice. Always consult a qualified professional to review your specific circumstances and project requirements.
For help or advice, please call 0409 007 794 or email [email protected].