Development standards

The sta ndards specified for tha t development a re that the development must — (a ) repla ce a la wful sign, a nd

(b) not be grea ter in size tha n the sign tha t it repla ces, a nd

(c) not be a sign tha t is a nima ted, fla shing or illumina ted, unless the sign it repla ces is the subject of a development consent to be a n illumina ted sign, a nd

(d) not involve a ny a ltera tion to the structure or vessel on which the sign is displa yed, a nd (e) not obstruct or interfere with tra ffic signs.

9.2.2 Lawfulness in change of use

One of the general requirements for complying development, as provided for at clause 1.18, is that the development must:

(b) be permissible, with consent, under an environmental planning instrument applying to the land on which the development is carried out.

In Subdivision 2 of Division 1 of Part 5 of the Codes SEPP, there are provisions for the change of use as complying development. The development standards include at subclause 5.2(1) include:

(b) the current use of the premises must not be an existing use within the meaning of section 4.65 of the Act,

Therefore, the requirement for complying development in terms of change of use is that:

(a) the new use must be for a purpose which is permitted with consent in the relevant zone; and

(b) the use being abandoned cannot be an existing use (meaning a development which was lawful when commenced but which is now a use prohibited in that zone under the new planning scheme).

In principle, the transitioning of a lawful development away from a (now) prohibited use to a use which is permitted with consent should be viewed as a good thing and as consistent with the treatment of existing uses under the EP&A Act.

The current provisions for change of use as complying development do not allow for this. It would only be available via a development application.

The difficulty is whether a complying development pathway can include satisfactory development controls for a new use when the new use.

i Recommendation

Review these provisions pending the reforms, if any, which may be considered in terms of the change of use tables in subclause 5.3(1). This topic is discussed further in the Change of Use section below.

9.2.3 Building alterations (internal)

Similar to the provisions relating to the replacement of a business identification sign, int ernal building alterations provisions (clauses 5.1 and 5.2 of the Codes SEPP) place the burden of proof regarding lawfulness on the proponent of the internal alterations.

The development standard that “the current use must be a lawful use” might be reworded such that the current use must not be the subject of any enforcement matter. This is an easier matter to ascertain.

The other development standard related to lawfulness is that “the current use of the premises must not be an existing use”.

There are already provisions under the EP&A Regulation (Part 5, clause 41) which set out the limits for any changes to a development reliant on existing use provisions.

Internal building alterations should not be presumed to equate to intensification. It is reasonable for internal alterations to be the subject of a complying development certificate because the EP&A Regulation already adequately regulates issues such as intensification, expansion and rebuilding.

i Recommendation

Delete subclauses 5.2(1)(a) and 5.2(1)(b), and add a new subclause 5.2(1)(a) being (bolded):

5.2 Development standards

(1) The standards specified for that development are as follows—

(a) the current use of the premises must be a lawful use,

(b) the current use of the premises must not be an existing use within the meaning of section 4.65 of the Act,

(a) the current use must not be the subject of any enforcement action under Part 9 of the Environmental Planning and Assessment Act 1979;

(c) the alteration must not result in an increase in the gross floor area of any building within which it is carried out, except if the increase is required for the alteration to comply with the Premises Standards, (d) the alteration must not involve the conversion of any area that is excluded from the measurement of gross floor area of the building (such as a basement, plant room, car parking space, loading space or void), (e) if the alteration is to a building used for the purposes of an entertainment venue (such as a cinema, theatre, hall or auditorium) in a registered club or used as an entertainment facility, the alteration must not increase the floor area used for those purposes,

(f) if the alteration involves food and drink premises, the alteration must be carried out in accordance with AS 4674—2004, Design, construction and fit-out of food premises,

(g) the alteration must not relate to the cooking of food at the premises by barbecue or charcoal methods, (h) if the alteration involves a loading dock, the alteration must not—

(i) reduce the number or capacity of the trucks accommodated, or (ii) reduce the area for goods handling, or

(iii) reduce the area for waste handling (including any recycling area), or (iv) reduce the manoeuvring area of the loading dock or access driveway,

(i) if the alteration involves the amalgamation of retail premises located in a building, the amalgamation must not result in 1 retail premises having more than 50% of the total floor area of the building that is used for the purposes of retail premises,

(j) the alteration must not affect an existing awning, or more than 25% of the gross floor area of an existing building to which an awning is attached, unless the awning complies with the requirements set out in BP1.1 and BP1.2 of Volume 1 of the Building Code of Australia.

9.2.4 Ancillary development

Clauses 5.17 and 5.18 of Subdivision 9 in Part 5 of the Codes SEPP provide for certain ancillary development to be complying development provided that a range of development standards are met.

The development standards have a range of controls related to scale and position, however one control is likely to arise for B1 and B2 development, being related to a premises with a rear lane. That provision is for any ancillary development in a heritage conservation area (or draft heritage conservation area) to not be specified complying development if the lot adjoins a lane or secondary or parallel road (subclause 5.18(h)(ii)).

i Recommendation

Delete (subclause 5.18(h)(ii)) being:

5.18 Development standards

The standards specified for that development are that the development must—

(a) have an area of not more than 100m2, or 15% of the area of the site on which the development is carried out, whichever is the lesser, and

(b) not have a building height of more than 5m, and

(c) be located at least 1m behind the building line of any road frontage (except where the development is a front awning on a building), and

(d) be located at least 3m from any boundary adjoining land on which a dwelling is located, and (e) not be located over a registered easement, and

(f) not reduce vehicular access to, parking on or loading or unloading on or from, the lot, and (g) not reduce the landscaped area of the lot, and

(h) if carried out in a heritage conservation area or in a draft heritage conservation area—

(i) be located behind the rear building line and no closer to each side boundary than the existing development with which it is associated, and

(ii) not be carried out on a lot that adjoins a lane or a secondary or parallel road, and

(i) to the extent that it is comprised of metal components—be constructed of low reflective, factory pre-coloured materials, and

(j) if located on bush fire prone land—be constructed of non-combustible material, and

(k) satisfy the requirements contained in an applicable development control plan applying to the land concerning its drainage systems and not interfere with the functioning of existing drainage fixtures or flow paths, and

(l) (Repealed)

(m) in the case of a garbage bin enclosure—

(i) not have a floor area more than 5m2, and

(ii) not be higher than 3m if roofed or 1.5m above ground level (existing) if not roofed, and (n) not be carried out under an awning unless the awning—

(i) complies with the requirements set out in BP1.1 and BP1.2 of Volume 1 of the Building Code of Australia, and

(ii) is structurally sound.

9.3 Change of use

Change of use is likely to arise in circumstances where current business enterprises vacate commercial premises of a type found in areas zoned B1 or B2, and alternative businesses seek to operate from the same space.

9.3.1 Exempt development

The nominated categories of development available as a change of use for exempt development are reasonable although consideration of a change of use to ‘a market’ is warranted.

The development controls relating to parking, traffic, noise and hours of operation also warrant consideration.

i Market

Clause 2.20A (Change of use of premises) should include “market” in the New Use column for Category 1 and Category 2. It is noted that a market is a common inclusion in permitted development across the sample LEPs.

a Recommendation

Delete the exclusion of ‘a market’ at subclause 2.20B(f)(vi).

ii Parking

Subclause 2.20B(i) provides that the new use (as exempt development):

must not cause the contravention of any existing condition of the most recent development consent (other than a complying development certificate) that applies to the premises relating to hours of operation, noise, car parking, vehicular movement, traffic generation, loading, waste management and landscaping.

This may present a challenge for a business owner who proposes a change of use. Establishing the existence of all prior development consents and identifying conditions, if any, related to traffic and parking, requires a significant research effort. Electronic records are generally only available for more recent records in most LGAs and establishing the existence of historical consents can require access to records under the Government Information (Public Access) Act 2009 (‘the GIPA Act’) and in some circumstances records are simply unavailable

a Recommendation

Delete subclause 2.20B(i) as below, and replace with a new subclause which requires the proposed development to:

• maintain the existing provision of car parking spaces (if any); or

• if the development is ‘traffic generating’, then provide car parking spaces as prescribed in the Guide to traffic generating developments (RTA, 2002, or as updated from time to time); or

• provide car parking spaces as required under the relevant development control plan.

Note that the deletion of subclause 2.20B(i) also deletes references to other amenity-based conditions which may apply, and so this recommendation needs to be considered concurrently with other changes, if any, to the subclause.

A summarised version of the proposed new subclauses at 2.20B is provided at the end of this section.

iii Hours of operation

There is also a default setting in the absence of any consent conditions relating to hours of operation (refer to subclause 2.20B(j)) being:

if there is no such existing condition applying to the premises relating to the hours of oper ation, the premises must only operate between 7.00 am and 7.00 pm on any day,

Limiting hours of operation to between 7:00am and 7:00 pm on any day is reasonable for retail premises but the change of use provisions at subclause 2.20A allow for office premises or business premises to replace a shop. This existing provision would mean that an accountant replacing a shop could not operate after 7:00pm.

a Recommendation

This subclause should be expanded by adding “or, if the premises are to be used for office bas ed services, between 7:00am and 10:00pm”. See bolded insert in the revised subclause below.

iv Noise

Noise can be managed by reference to a specific threshold rather than by consent conditions relating to a prior development.

A suggested performance measure is that noise level generated by any equipment or activity must not exceed an LAeq (15min) of 5dB(A) above background noise at the nearest residential property boundary, consistent with the NSW Government Noise Policy for Industry and the requirements (if applicable) of the Liquor Act 2007.

a Recommendation

Insert a new subclause which stipulates “noise level generated by any equipment or activity must not exceed an LAeq (15min) of 5dB(A) above background noise at the nearest residential property boundary”.

v Revised subclause

Deleted section are shown as strikethrough; additional provisions shown as bold.