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In New South Wales, some minor works with low environmental impact are classified as exempt development, meaning they don’t require formal approval. While the term “minimal environmental impact” may sound flexible, it’s not based on personal judgment. Instead, what constitute such development is defined by the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 [NSW]). Local councils may grant additional exemptions for specific types of developments, offering residents further flexibility.
Examples of landscape related exempt development
The Exempt Codes cover various minor development types. Some common types related to landscaping are:
- Access ramps
- Balconies, decks, patios, pergolas, terraces and verandas
- Barbecues and other outdoor cooking structures
- Cabanas, cubby houses, ferneries, garden sheds, gazebos and greenhouses
- Carports
- Clothes hoists and clothes lines
- Driveways and hard stand spaces
- Earthworks, retaining walls and structural support
- Fences
- Landscaping structures
- Letterboxes
- Pathways and paving
- Privacy screens
- Rainwater tanks above ground and below ground
- Sculptures and artworks
- Shade structures of canvas, fabric, mesh or the like
- Water features and ponds
- and other
The code will specify the conditions that need to be met for this type of development to be considered exempt. It’s important to gauge the intended exempt development against these controls and controls which apply to the land already. For instance, if exempt development allows paving up to 15% of the lot or 150 sqm (whichever is less), but your site has already been built up under a previous development application (DA) and only the minimum required landscaped area remains, then the new paving would not qualify as exempt development, even if it meets the Exempt Code.
Similarly, constructing one or two structures from the list above may fall under exempt development. However, if you plan to build them larger or cover a greater area than permitted under exempt development rules, you may need to lodge a DA or obtain a Complying Development Certificate (CDC).
Swimming pools in NSW always necessitate planning approval via DA or CDC.
Exempt Development – Not possible everywhere
In NSW, there are certain restrictions on where exempt development can be carried out, and the policy is often complex for non-experts to navigate.
At the state level, restrictions apply to areas of significant biodiversity, wilderness zones, and heritage sites, which may also affect private properties. Additionally, local councils can impose Exempt Local Exclusions, meaning your property might not qualify for exempt development.
A planning certificate from your local council can provide useful information on whether your property qualifies.
You will need to interpret it carefully against, the Code and against proposed development to ensure your project complies, as the requirements are often complex, and the detail is in the fine print. That’s why it’s useful to consult with professionals, such as a landscape designer, who can help clarify whether your site and proposed development is eligible.
It helps to keep a record of how the compliance was addressed. This can help avoid potential complications, such as difficulties during the sale of your property or the need for rectification if the council or certifying authority believes it’s necessary.
To see what the compliance check may entitle check out our Exempt Development Requirements – Example Checklists.
If your project doesn’t meet the criteria for Exempt Development, you will need to explore alternative options, such as Complying Development Certificate or Development Application (DA).
To avoid potential issues, consult with suitably qualified professionals, such as Gardenism.