Neustein Urban - Planning design architecture

FAQs

Note: The responses to these FAQs are for general guidance only.  They should not be regarded as substitutes for appropriate professional planning or legal advice.

TEN BASIC QUESTIONS

1   I have been notified about an adjoining DA - what should I do?

2   What information can I get from council about a DA?

3   Can a development be approved without the neighbours being notified?

4   Can I challenge a development approval?

5   What are "exempt" and "complying" development?

6   What can I do if the building under construction next door looks different from plans I was shown?

7   What if my proposed house does not fit the State Housing Code?

8   What if my proposal doesn't meet the State Commercial & Industrial Code?

9   Why use a planner?

10  What are "existing use rights"?





Q

I have been notified about an adjoining DA - what should I do?

A

If you receive notification of a development application on a property adjoining your own and you have some concerns, you should outline these concerns in a letter of objection to the local council. Provided the objections you raise are reasonable and relevant to the proposed works, council officers are obliged to address your concerns within their report on the DA.  Be aware that your objection will be on the public record and available to your neighbours. As a neighbour, you do not have right to veto a council decision regarding a DA.

Q

What information can I get from council about a DA?

A

Under section 12 of the Local Government Act, members of the public may ask to see a complete file about a DA.  Copies may be requested (subject to a charge for copying).  All material on the file is on the public record.   Likewise any objections lodged form part of the public record and may be viewed by both the applicant and neighbours.  Some councils require a request form to be filled out by anyone wishing to see a file, but no charge may be made for viewing the file.  An FOI request is not required to view a file.

Q

Can a development be approved without the neighbours being notified?

A

Yes, under certain circumstances.  Under the new State Housing Code, development proposals for new dwellings or additions may be categorised as complying development.  If this is the case, you will receive notification only after the application has been certified, as it does not require council approval. As all other development applications are notified, you should receive notice of any other type of development if the site directly adjoins your property or if your property will be affected by a proposal.

Lack of notification may be sufficient reason to invalidate an approval. However, notification is deemed to have been made if council posted the notice, even if it was subsequently lost. To find out whether there is any basis for claiming notice was not given, go to the council and ask to inspect the file. Usually information about who has been notified and the notice itself will be found on the file. To protect against this problem of failure to notify, councils often place notices on the site itself, alerting the local community of a proposed development. If, after checking the council file, you believe you were not appropriately notified, consult a specialist lawyer.

Q

Can I challenge a development approval?

A

Theoretically, yes, but in practical terms, no. For most developments, approval is the end of the story. There is no general right of appeal for objectors, except in respect of a special class of high impact development known as “designated development”, such as a marina, mine, quarry or piggery. Otherwise an appeal is possible only if an error has been made in the processing of a DA, a fact that can be very difficult to establish. If you wish to challenge an appeal, you need to consult a specialist lawyer. This is a very difficult and expensive form of litigation.

Q

What are "exempt" and "complying" development?

A

Minor forms of development which do not require planning or construction approval by a local council or accredited certifier are regarded as exempt provided specified development standards are met. Nevertheless, legislative requirements such as the provisions of the Building Code of Australia may still apply.

Currently 41 types of development are listed as exempt in the NSW Housing Code. These are mainly small scale structures related to a dwelling, including air conditioning units, barbecues, driveways, terraces, and privacy screens. Other types of development that are not covered under this code may be classified as exempt under a local Development Control Plan.

Relatively minor forms of development that require only a Complying Development Certificate instead of a DA are referred to as Complying Development. A proposal may be categorised as complying if it meets all relevant provisions of the NSW Housing Code, or if it meets the relevant local council complying development requirements for development types not covered under the NSW Housing Code. This may include detached single and double storey dwellings, home extensions and other ancillary development such as swimming pools. Certified by a PCA, complying development does not involve a DA process, is outside council control, and is not notified to neighbours until work is ready to commence. Neighbours are not invited to make submissions, and have no right of appeal.

Q

What can I do if the building under construction next door looks different from plans I was shown?

A

If the building next door appears significantly different from the plans you saw during the DA notification period, first contact the Principal Certifying Authority (PCA). The contact details of the PCA should be located in a prominent position on the front fence of the new development.

The Construction Certificate authorises only work which is ‘not inconsistent’ with what was approved in the DA. It is important to understand that ‘not inconsistent’ does not mean ‘the same as.’ A reasonable level of change is permitted when the approved building design is elaborated in the Construction Certificate drawings.

If the PCA is unable to give you a proper answer as to why the development appears different from the plans, consult the council or a surveyor, architect, planner or engineer to find out if the development is ‘consistent’ with the approved plans.

If the on-going construction differs from the DA in significant and substantial ways, and if these variations will adversely affect your property, you should contact a specialist lawyer.

Q

What if my proposed house does not fit the State Housing Code?

A

If your proposed house does not fit within the State Housing Code as complying development, consult your council to find out if the development can be considered complying under local controls. If your proposed house complies with council’s complying controls, you can apply for a Complying Development Certificate (CDC).

If neither the State nor your local council controls identify your development as complying, you must submit a DA to the council. The development will be assessed against relevant State Environmental Planning Policies (SEPPs), any Local Environmental Plan (LEP) and merit controls such as Development Control Plans (DCPs).

Urban planners like Neustein Urban have knowledge and experience in preparing applications under the NSW Planning System. We can provide you with all the advice you need to lodge or amend a DA. Neustein Urban has the special expertise to prepare the Statement of Environmental Effects (SEE) required as part of a DA, and to address council’s potential concerns with your DA. (Add link to relevant NU page)

Q

What if my proposal doesn't meet the State Commercial & Industrial Code?

A

If your proposed commercial or industrial development does not qualify under this code as exempt or complying development, the first step is to determine if the development can be considered exempt or complying under local council controls. If your proposed development is listed within the council’s exempt or complying controls, you may need only a Complying Development Certificate (CDC), which is issued by a PCA.

If neither State nor local council controls identify your development as complying, you must submit a DA to council. The development will be assessed against relevant State Environmental Planning Policies (SEPPs), any Local Environmental Plan (LEP) and merit controls such as Development Control Plans (DCPs).

Urban planners like Neustein Urban have the necessary knowledge and experience of the NSW Planning System to provide all the advice you need to lodge a DA. Neustein Urban can prepare the Statement of Environmental Effects (SEE) required as part of the DA and can address council’s potential concerns with your application. (Add link to relevant NU page)

Q

Why use a planner?

A

You may want to use the services of a planner if you are considering any form of development proposal - whether small scale such as alterations or additions to a house, additions like a pool or garage to a property, changing the use of a retail premises, or larger scale such as a duplex, a multi storey residential flat building, or a commercial building - and want to ensure the regulatory compliance of your proposal.

A planner can assist you throughout the development application process. The EP&A Act requires that an SEE must be prepared as part of any DA, which is where a planners services are required. The purpose of this essential document is to thoroughly clarify your proposal, highlighting any positive impacts, and mitigating any adverse impacts.

A planner can also advise you in the designing of your proposal, on how new or altered planning policies are likely to affect you and if so what actions you can take, liaising with Council before and after submission of the application, prepare submissions to the relevant local or State government body on your behalf, responding to neighbours objections, and representing you at Council meetings.

A planner may be able to save you money, and may be able to negotiate a better outcome for your proposal.

Q

What are "existing use rights"?

A

Existing uses are defined in Section 106 of the EP&A Act as uses which were lawfully commenced or for which development consent was obtained, but have since been prohibited under an EPI. For example many of our local corner stores, cafes and service stations in residential areas have existing use rights. An existing use right does not refer to the continuation of a use which is permitted under the zoning controls.

The intent of existing use rights is to accommodate non-conforming uses until such uses are ultimately extinguished in favour of development which conforms with the zoning controls. The existing use provisions aim to balance the potential hardship and dislocation that could result if landowners or occupiers were required to discontinue uses no longer permitted under current planning controls with the need to change over to a new and zoning regime. For example, an existing factory is permitted to continue operating (and, if appropriate, expand its operation to a minor degree) even though the site and surrounding areas may have been rezoned for residential purposes only.


Further reading - see http://n-urban.com/articles/papers/dealing_with_existing_use_rights/