Exempt development for cladding

Following London’s Grenfell Tower fire in June 2017, the Government announced a package of reforms to improve fire safety checks in building certification and reduce the risks around the use of unsafe building products such as combustible cladding.

To complement these reforms, the State Environmental Planning Policy Amendment (Exempt Development Cladding and Decorative Works) 2018 amends 8 state environmental planning policies. These amendments are intended to address any fire safety risks that may arise where a property owner carries out minor external building alterations using combustible cladding material under the exempt development framework (that is, without planning or building approval).

These amendments reflect feedback the department has received from stakeholders, including councils, accredited certifiers, industry and the community.

The SEPPs that have been amended were:

• State Environmental Planning Policy (Affordable Rental Housing) 2009 (Affordable Rental Housing SEPP)
• State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (Education SEPP)
• State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP)
• State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP)
• State Environmental Planning Policy (Kosciuszko National Park – Alpine Resorts) 2008 (Alpine Resorts SEPP)
• State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (Mining SEPP)
• State Environmental Planning Policy (Three Ports) 2013 (Three Ports SEPP)
• State Environmental Planning Policy (Western Sydney Parklands) 2009 (Western Sydney Parklands SEPP)

Most of the above SEPPs have since been consolidated into new SEPPs under the SEPP Consolidation project.

Under the changes, cladding, re-cladding and decorative work can no longer be carried out as exempt development on certain buildings, including dwelling houses that are more than 2 storeys, apartment buildings, boarding houses, shop top housing, seniors housing, commercial buildings and industrial buildings. For other buildings, cladding or decorative work that is proposed to be undertaken as exempt development must not involve the use of external combustible cladding.

Each of these SEPPs was also amended to refer to a new definition of 'external combustible cladding' in the regulation as follows.

'External combustible cladding', applied to an external wall or area of a building, means:

1. any cladding or cladding system comprising metal composite panels, including aluminium, zinc and copper, or
2. any insulated cladding system, including a system comprising polystyrene, polyurethane or polyisocyanurate.

Further detail about the definition, as well as the responsibilities of building owners and councils under the changes to the regulation is at Combustible cladding.

The amendments to the state planning policies will commence on 22 October 2018, together with the changes to the regulation.

Exempt development is development that is declared to be exempt development by an environmental planning instrument (EPI), such as a state environmental planning policy (SEPP), because of its minor impact. This means that it does not need planning or building approval provided the proposal meets all relevant development standards in the EPI. To be exempt development the development must also comply with the Building Code of Australia.

Note: The following SEPP titles and clause references have subsequently changed (except for the Codes SEPP) due to the SEPP consolidation project. The consolidated SEPPs commenced on 1 March 2022

Changes to the Affordable Rental Housing SEPP

The Affordable Rental Housing SEPP aims to increase the supply and diversity of affordable rental and social housing in NSW.

The Affordable Rental Housing SEPP (clause 41) was amended to specify that repairs, maintenance work, non-structural renovations and building renovations carried out in relation to housing by on behalf of the Land and Housing Corporation as exempt development must not involve the use of external combustible cladding as defined in the regulation.

Schedule 1 of the Infrastructure SEPP is referred to in clause 44 of the Affordable Rental Housing SEPP. Changes to Schedule 1 of the Infrastructure SEPP (set out below) mean that building external alterations, including re-cladding roofs or walls, carried out by or on behalf of a public authority within the boundaries of an existing group home as exempt development under clause 44 of the Affordable Rental Housing SEPP must not involve the use of external combustible cladding as defined in the regulation.

Changes to the Education SEPP

The Education SEPP aims to make it easier for childcare providers, schools, TAFEs and universities to build new facilities and improve existing ones by streamlining approval processes across NSW.

The Education SEPP (Schedule 1) has been amended to specify that building external alterations, including re-cladding roofs or walls, carried out by or on behalf of a public authority in connection with an existing educational establishment, or carried out by a person other than a public authority on land within the boundaries of an existing school, university or TAFE establishment, as exempt development must not involve the use of external combustible cladding as defined in the regulation.

Changes to the Codes SEPP

The Codes SEPP sets a consistent state-wide approach for exempt development.

The Codes SEPP (clauses 2.50A, 2.53, 2.80A and 2.80B) was amended to specify that:

• cladding, re-cladding, attaching fittings and decorative work on external walls and roofs can be carried out as exempt development only on one and 2 storey dwelling houses, attached development or detached development, and must not involve the use of external combustible cladding as defined in the Environmental Planning &and Assessment Act (EP&A Act)
• a non-structural internal or external alteration to a boat shed, as exempt development must not involve the use of external combustible cladding as defined in the EP&A Act.

The effect of these amendments is that under the Codes SEPP all other buildings, including dwelling houses that are more than two storeys, residential apartment buildings, boarding houses, shop top housing, seniors housing, commercial buildings and industrial buildings, cannot have cladding or recladding undertaken as exempt development.

Changes to the Infrastructure SEPP

The Infrastructure SEPP assists the NSW Government, local councils and the communities they support by simplifying the process for providing infrastructure such as hospitals, roads, railways, emergency services, water supply and electricity delivery.

The Infrastructure SEPP (clause 70) was amended to specify that non-structural alterations to the exteriors of buildings, such as cladding, attaching fittings and decorative work, carried out as exempt development on land in the area of a port that is managed by the Newcastle Port Corporation or is vested in the Roads and Maritime Services, must not involve the use of external combustible cladding as defined in the regulation.

Schedule 1 of the Infrastructure SEPP has also been amended to specify that building external alterations carried out by or on behalf of a public authority as exempt development, including re-cladding roofs and walls, must not involve the use of external combustible cladding as defined in the regulation.

Changes to the Alpine Resorts SEPP

The Alpine Resorts SEPP protects and enhances the natural environment of the alpine resorts and encourages the carrying out of a range of development that does not result in adverse environmental, social or economic impacts on the natural or cultural environment.

The Alpine Resorts SEPP (Schedule 2) was amended to specify that the repair or replacement of deteriorated or damaged material carried out as exempt development must not involve the use of external combustible cladding as defined in the regulation.

Changes to the Mining SEPP

The Mining SEPP governs the way mining, petroleum production and extractive material resource proposals are assessed and developed in NSW.

The Mining SEPP (clause 10) was amended to specify that non-structural alterations to the exterior of a building (such as cladding, attaching fittings or decorative work) that are undertaken as exempt development on land that is the site of an approved mine, an approved petroleum production facility or an approved extractive industry, must not involve the use of external combustible cladding as defined in the regulation.

Changes to the Three Ports SEPP

The Three Ports SEPP provides for a consistent planning regime for the development and delivery of infrastructure on land in Port Botany, Port Kembla and the Port of Newcastle and allows the efficient development and protection of land at these three Ports for port-related purposes. The SEPP identifies certain development within these areas as exempt development and complying development.

The Three Ports SEPP (Schedule 1) has been amended to specify that non-structural alterations to the exteriors of buildings within the Lease Area (that is, the Port Botany Lease Area, Port Kembla Lease Area or Port of Newcastle Lease Area as identified in the SEPP) undertaken as exempt development must not involve the use of external combustible cladding as defined in the regulation.

Changes to the Western Sydney Parklands SEPP

The Western Sydney Parklands SEPP aims to put planning controls in place for the Western Sydney Parklands.

The Western Sydney Parklands SEPP (Schedule 2) has been amended to specify that alterations or additions to, or development ancillary to, a function centre, community facility, entertainment facility, information and education facility, public administration building or an existing recreational use, undertaken as exempt development must not involve the use of external combustible cladding as defined in the regulation.

It has also been amended to specify that minor external alterations to a building other than a public building as exempt development must not involve the use of external combustible cladding as defined in the regulation.

Exempt development must comply with all relevant development standards specified in the applicable SEPP including any requirement to install the material in accordance with the manufacturer’s specifications. Exempt development must also comply with the Building Code of Australia.

Exempt development cannot be carried out in some sensitive areas, as set out under the relevant SEPPs. These include:

• declared areas of outstanding biodiversity value under the Biodiversity Conservation Act 2016
• declared critical habitat under the Fisheries Management Act 1994
• land that is, or on which there is, an item listed on the State Heritage Register or that is subject to an interim heritage order under the Heritage Act 1977.

The development and complying development application pathways are available if you can no longer carry out proposed cladding as exempt development.

Complying development is a fast-track approval process for straightforward residential, commercial and industrial development. If the application meets all the relevant development standards in the relevant SEPP, a council or accredited certifier can issue a complying development certificate. Alternatively, you could lodge a development application with the relevant local council.

More information about complying development is available on the NSW Planning Portal at How do I qualify for fast track approval?.