How to Know If Your Project Is Considered Exempt Development

Many minor building projects and changes of use do not actually require a formal Development Application (DA) or even a Complying Development Certificate (CDC). These low-impact projects fall under a category known as Exempt Development.

At Town Planning Sydney we help property owners and developers identify the most efficient approval pathway for their projects.

Understanding the "Exempt" criteria can save you months of waiting for council approval and thousands of dollars in consultant fees.

This guide provides a breakdown of how to determine if your next project qualifies as Exempt Development under the current NSW planning framework.

Clear Definitions of NSW Planning Terms

Before assessing a project, it is vital to understand the terminology used by a town planner NSW or local council authorities.

What is Exempt Development?

Exempt Development refers to very low-impact works that can be carried out without any planning or building approval from a consent authority. This is possible because the development standards for these works are pre-set by the state government.

What is the Codes SEPP?

The State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, commonly called the "Codes SEPP," is the primary legal document that lists what projects are exempt in NSW.

What is a Development Application (DA)?

A Development Application is a formal request to your local council for permission to carry out a project that does not meet the strict criteria for Exempt or Complying development. It requires a merit-based assessment against Local Environmental Plans (LEPs) and Development Control Plans (DCPs).

Exempt Development in NSW allows for minor, low-impact works to be completed without council approval, provided they meet 100% of the standards in the Codes SEPP. If a project fails any of these standards, it must proceed via a Complying Development Certificate (CDC) or a Development Application (DA).

What Exempt Development Means in NSW

In the NSW planning hierarchy, Exempt Development is the entry-level pathway. It is designed for projects so minor that they are unlikely to impact neighbours or the environment.

Under Part 2, Note 2 of the Codes SEPP, a person may carry out specified development without obtaining consent if they comply with all applicable development standards, including the Building Code of Australia (BCA).

Common examples of projects that are often exempt for homeowners and businesses include:

• Minor Structures: Garden sheds, gazebos, cabanas, cubby houses and greenhouses.

• Outdoor Living: Decks, patios, pergolas, terraces, balconies and verandahs.

• Home Operations: Home businesses, home industries and home occupations.

• Building Maintenance: Minor internal and external building alterations.

• Essential Utilities: Air-conditioning units, hot water systems and rainwater tanks.

• Site Works: Driveways, hard stand spaces, pathways and paving.

The 5-Step Process to Confirm Exempt Status

The NSW Department of Planning and Environment provides a checklist to determine if your project is exempt. Following these steps systematically is essential to ensure your work is legal.

Step 1: Check the Project Type

Verify if your specific project is listed in the General Exempt Development Code. The list includes but is not limited to:

• Aerials, antennae and communication

dishes

• Air-conditioning units

• Aviaries

• Awnings, blinds and canopies

• Balconies, decks, patios, pergolas,

terraces and verandahs

• Barbecues and other outdoor cooking

structures

• Cabanas, cubby houses, ferneries,

garden sheds, gazebos and

greenhouses

• Carports

• Clothes hoists and clothes lines

• Demolition

• Driveways and hard stand spaces

• Earthworks, retaining walls and

structural support

• Emergency work and repairs

• Evaporative cooling units (roof

mounted)

• Fences (certain zones)

• Fences for swimming pools (certain

zones)

• Flagpoles

• Garbage bin storage enclosure

• Home businesses, home industries and

home occupations

• Hot water systems

• Landscaping structures

• Letterboxes

• Maintenance of buildings in draft heritage

conservation areas

• Minor building alterations (internal)

• Minor building alterations (external)

• Pathways and paving

• Playground equipment

• Portable swimming pools and spas and

child-resistant barriers

• Privacy screens

• Rainwater tanks (above ground)

• Rainwater tanks (below ground)

• Roller shutter doors adjoining lanes

• Screen enclosures (of balconies,

decks, patios, pergolas, terraces and

verandahs)

• Shade structures of canvas, fabric, mesh

or the like

• Skylights, roof windows and ventilators

• Stairway

• Street library

• Subdivision

• Sculptures and artworks

• Tennis courts

• Water features and ponds

• Waterway structures - minor alterations

Step 2: Confirm Land Permissibility

Even if the project type is listed, your land might be excluded. You must check:

• Heritage Restrictions: Demolition of heritage items or works in heritage conservation areas often have restricted exempt rights.

• Siding Spring Observatory: Specific rules apply to land within 18 kilometres of this observatory.

• Excluded Land: Refer to Schedules 2 and 4 of the Codes SEPP to see if your land is specifically excluded from the code.

Step 3: Verify Development Standards

Each exempt project has "development standards" (such as maximum height or floor area). For example, a garden shed might be exempt only if it is under a certain size. You must comply with ALL specified standards for that development type.

Step 4: Check Conditions and Other Requirements

Your project must also meet external standards beyond the planning code:

• The Building Code of Australia (BCA): All work must be structurally sound.

• Australian Standards: Specific technical requirements for materials and installation.

• Tree Preservation Orders: You cannot clear protected trees to make room for exempt work without separate council permission.

• Asbestos: Strict removal and disposal guidelines must be followed if old structures are being demolished.

Step 5: Proceed and Record

If you meet all the above, you can proceed without further planning approval. It is a solid planning strategy to retain a record of your notes and proof of compliance at the time the works were carried out in case of future council queries or property sales.

Key Planning Controls and Regulations

While the Codes SEPP is the primary authority, other regulations can overlap. For instance, solar energy system controls are found in the Transport and Infrastructure SEPP 2021 rather than the General Exempt Development Code.

For commercial property owners, a change of use approval might be exempt if it meets the "change of use" criteria within the Codes SEPP, such as moving from one type of retail shop to another without changing the building footprint. However, if the new use involves food preparation or skin penetration, additional health standards apply.

Town Planning Sydney - Case Scenarios

Case Scenario 1: The Commercial Internal Fit-out

A business owner in Western Sydney wanted to renovate the internal layout of their office, adding new partitioned glass walls and a kitchenette.

• The Constraints: The building was not a heritage item, and the work was entirely internal.

• The Strategy: We reviewed the "Minor building alterations (internal)" section of the Codes SEPP. Since the work did not affect the structural integrity of the building or the fire safety systems, it qualified as Exempt Development.

• The Outcome: The business owner saved approximately $4,500 in DA fees and consultant costs by proceeding without a formal application, simply ensuring the builder complied with the BCA.

Case Scenario 2: The "Exempt" Shed that Wasn't

A property owner installed a large 40sqm garden shed in their backyard, assuming it was exempt.

• The Constraints: The local LEP had a maximum floor area of 20sqm for exempt outbuildings in that specific zone.

• The Strategy: Because the shed exceeded the "development standards" mentioned in Step 3 of the guide, it was not exempt.

• The Outcome: The owner received a notice from the council. Town Planning Sydney was engaged to provide CDC vs DA advice. We successfully obtained a retrospective building certificate, but the owner had to pay significant fines that could have been avoided with a pre-build compliance check.

Common Misconceptions About Exempt Development

• "If my neighbour did it, it’s exempt for me": Planning rules change based on your specific land zoning and whether you are in a heritage area. Always check your own Section 10.7 Planning Certificate.

• "Exempt means no rules": This is a dangerous mistake. Exempt means no application, but you must still follow the standards. If your exempt shed is 10cm too high, it becomes illegal development.

• "Internal work is always exempt": While most internal work is exempt, anything that changes the "use" of the building (e.g. turning a warehouse into a gym) usually requires a change of use approval via a DA or CDC.

FAQ: Frequently Asked Questions

Do I need council approval for a garden shed in NSW?

Not if it meets the standards for a "garden shed" under the Codes SEPP. Usually, this means it must be under a certain height and floor area and located behind the front building line.

Can I build a deck without a DA?

Yes, "decks" are listed as potentially exempt development. However, they must meet strict standards regarding height above ground level and distance from boundaries to ensure privacy for neighbours.

Is a home business always exempt?

A "home business" or "home occupation" is exempt only if it does not involve more than two non-resident employees and does not interfere with the amenity of the neighbourhood through noise or traffic.

Do I need a DA for internal renovations?

"Minor building alterations (internal)" are often exempt. However, if you are moving load-bearing walls or changing the use of the room (e.g. commercial to residential), you will likely need a CDC or DA.

What happens if I build something that I thought was exempt but isn't?

Council can issue a stop-work order or a fine. You may be forced to demolish the structure or apply for a retrospective Building Information Certificate, which is often more expensive than a standard council approval process.

Does exempt development need to comply with the BCA?

Yes. All exempt development must comply with the deemed-to-satisfy provisions of the Building Code of Australia.

Exempt Development is a fantastic tool for NSW property owners to improve their assets without the red tape of a full development application NSW. However, the burden of proof is on the property owner to ensure that 100% of the requirements are met.

At Town Planning Sydney we provide the expert oversight needed to confirm your exempt status or prepare a professional Statement of Environmental Effects if a DA is required. Our goal is to ensure your project is compliant, legal and efficient.

Contact Town Planning Sydney today to confirm your project's approval pathway and move forward with confidence.