General Housing Code in State Environmental Planning Policy (Exempt and Complying Development Codes) 2008

 Dear Elizabeth

Thank you for the opportunity to comment on the proposed amendments to the General Housing Code in State Environmental Planning Policy (Exempt and Complying Development Codes) 2008. The Property Council has been a long-time supporter of the use and expansion of exempt and complying code, which delivers a more transparent and efficient planning system and benefits the property industry, small business owners, homebuilders, and renovators.

As you are aware, the Property Council is the nation's peak representative of the property industry. Our 2,200 members are Australia's major investors, developers and owners of commercial, residential, retail, industrial, retirement living and hotel assets worth over $320 billion. Our members include the major home builders, along with those involved in design, construction, and planning of residential developments across the greenfields and in in-fill.

We support the objectives of the amendments to ensure that there is clarity around understanding and application of the Codes SEPP. We further support the State Government’s target to increase the take-up of complying development.

Our review of the proposed amendments has unearthed some issues which we recommend be considered in finalising the changes, however we believe that the general benefits outweigh any potential difficulties. Our comments apply predominantly to complying development.


Clarity for certifiers

We support the goal of reducing confusion and increasing awareness for certifiers. This is aided by the incorporation of diagrams into the Codes SEPP. However, there is a risk that elements which are too formulaic will lead to an increasing number of Development Applications DAs). For example, the requirements for design outside the building line such as porticos are highly restrictive. Design principles
should not be legislated – rather, general principles should be outlined which can be reasonably applied by certifiers.

The proposed Codes SEPP risks being overly complicated through its reliance on formulaic diagrams. We recommend that more descriptive language be inserted in support of diagrams, and we recommend that education be undertaken for certifiers to ensure understanding and consistency in application.

The formulaic nature of the Codes SEPP was necessary to define to lowest common denominator in order to allow exempt and complying development. However, there is a risk that Councils could take these provisions and apply them to DAs out of context and argue they are mandatory design requirements. The SEPP needs to clearly state the purpose and application of these development codes.

Additionally, we would like to understand the way in which the department will weigh the comments from different stakeholders (e.g. the private sector, LGAs, designers). Will decisions be made based on a majority rule of the SEPP committee or on merit?

Design requirements

The design requirements for building and landscaped elements in the setbacks are too restrictive. Rather than specify the type of element, the code should define the envelope. The use of terms such as decks and terrace with maximum heights etc. is problematic, as there are a wide variety of designs and interpretations that will not be permitted, that should be.

The designs that conform with the character of the surrounding built form should not be limited by minimum setback, maximum garage widths, maximum built form on boundaries etc.

The tertiary development standards, earthworks, retaining walls and structural support is poorly drafted, providing too much flexibility in some areas and is too restrictive in others. The design and type of excavation and retaining wall etc., is specific to the ground conditions, type and design of the adjacent structures. All structural and civil work including excavations that could affect adjoining land must be designed and approved by the appropriate engineers.

Small lot sizes

One of the key areas where exempt and complying development can be expanded, in support of the government’s goals, is in delivery of new housing on small lots, particularly in in-fill. Some of the requirements within the proposed amendments, however, create issues for smaller lot sizes. We recommend that the housing diversity principles applicable to the growth centres be expanded across Sydney to increase the take-up of complying development.

For example, the application of minimum landscaped areas. While we support the calculation of the percentage of lot for landscaping, the minimum width requirements are prohibitive for small lots and should be relaxed or related to lot size.

Non-standard lots

The formulaic nature of the proposed amendments necessarily means that non-standard lots are not incorporated. Particularly in inner- and middle-ring suburbs, there are a range of non-standard lots, such as lots with side lanes and terraces.

For example, battle-axe blocks are a clever way of utilising functional land which does not have a street frontage. Land values for these blocks typically reflect the overall land values of the neighbourhood,
however the Codes SEPP does not allow for land used for driveways to be counted towards Floor Space Ratio (FSR) – even when the development still complies with height controls and setbacks. As we seek to maximise land use across Sydney, purchasers of these blocks should not be disadvantaged with living space due to unusable land for long driveways.

The site area for the application of the FSR for battle-axe lots should include the handle, as the height and setback controls will govern the building envelope.

Another example is where the local character of the development site is not reflected in the Codes SEPP provisions – for instance in terrace communities where existing setbacks don’t meet the new provisions. Exceptions should be considered to setbacks in these circumstances without requiring a DA.

Lots with rear or side lanes also need more flexibility.

Alterations and Additions

Clarification is required so that it is clear that the codes only relate to the proposed additions (Division 3) and that the existing lot and building do not have to comply with the SEPP to qualify. Therefore, a number of the codes are not relevant depending on what the proposed works are. i.e. the FSR control would apply if there was an additional room added, but it would not apply for landscaping works.

Secondary development standards for alterations and additions (Sub division 2) clause should be reconsidered as it risks requiring the existing dwelling to be upgraded to retrospectively comply with this SEPP on the completion of the alterations.

Other issues

We recommend that:
 batters be allowed as an alternative to retaining walls
 garages should be able to sit on the building line, rather than set back 5.5 metres
 car parking and garage codes are too restrictive, especially as they relate to the lot width, openings and maximum area.

If you would like to discuss anything further, I can always be reached on (02) 9033 1907 or [email protected]


Yours sincerely,

Felicity Wilson

NSW Deputy Executive Director

Property Council of Australia