Planning pathways for cemeteries

The department has introduced an exempt and complying development framework for maintenance and other minor ancillary works within existing or approved cemeteries by amending the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP).

A 2020 statutory review of the Cemeteries and Crematoria Act 2013 recognised cemeteries for their important role in providing essential social infrastructure and found that they should hold the same status in the NSW planning system as other social infrastructure like schools and hospitals.

The reforms introduce exempt and complying development pathways to allow cemetery operators to undertake minor works without the need for a development application. This will bring the approval framework for cemeteries into alignment with other forms of social infrastructure.

The SEPP amendment also delivers on a key commitment made earlier in the year under the government’s strategic statement: Delivering strong consumer outcomes for Cemeteries and Crematoria in NSW, which outlines policy priorities for cemeteries and crematoria in NSW.

The draft framework was publicly exhibited through an explanation of intended effect from 23 October to 19 November 2023. Submissions were received from local government and industry groups including cemetery operators. The policy was refined following a review of issues raised through submissions.

Public authorities and private operators may carry out minor ancillary works, as specified in the framework, as exempt or complying development within any existing or approved cemetery.

Exempt development is minor, low-impact development that can be undertaken without the need for planning or building approvals if certain requirements are met. The exempt development pathway is for small-scale works such as sheds, internal roads and landscaping structures that do not need planning or construction approval from a council or private certifier, do not impact services or building elements regulated by the National Construction Code and do not pose a risk to public safety.

Complying development is a combined planning and construction approval for straightforward development that can be determined through a fast-track assessment by a council or private certifier. The council or an accredited certifier can issue a complying development certificate without needing a full development application if certain requirements are met. The complying development pathway is for works that require certification or oversight because of their scale or structural features, such as larger ancillary buildings, establishment of new burial areas, or above-ground burial structures up to 5.5 m in height.

No. The new framework provides a tailored set of exempt and complying development types that respond to the common site constraints and operational needs of cemeteries. The new framework supplements existing provisions available under the Transport and Infrastructure SEPP and State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, which will remain available to cemetery operators in certain circumstances.

For any work that impacts state heritage, the framework does not remove the requirement to obtain an approval under the Heritage Act 1977. If the proposed works are subject to a site-specific or general heritage exemption issued under that Act, the corresponding requirements of the exemption must be met.

Additionally, for exempt development the new framework only permits work that is likely to affect a heritage item (state or local) or area where heritage impact is no more than minimal. The works must also be consistent with any relevant heritage management documents such as a conservation management plan.

For complying development on local heritage items, an applicant will need to seek council input on the heritage impact.

The new framework also contain overarching controls and site requirements to protect environmentally sensitive areas for both exempt and complying development. These will ensure that the scale and extent of works, individually and cumulatively, result in neutral or minor environmental impact. The controls also ensure development that requires merit assessment or particularly technical considerations, cannot use the exempt or complying development pathways.

The exempt and complying development pathway allows low-impact minor works within cemeteries to proceed without development assessment from councils. In addition, as cemetery operators, councils will also be able to utilise the new development pathways to undertake certain works within their cemeteries.

No, the updated framework does not provide for new cemeteries or the expansion of cemeteries into adjoining sites. These will continue to be merit assessed through development applications or as state significant development if the relevant threshold is met.

During exhibition, stakeholders raised concerns about the timeframes, costs, and regulatory ambiguity associated with existing planning pathways, which hinder the efficient delivery of new burial spaces to meet future demand. In response to this feedback and stakeholder input the framework now permits the creation of new burial areas as complying development. Additionally, the framework specifies that the internment of human remains within existing burial areas is permitted as exempt development and does not require planning approval. These measures offer clarity and support to operators as they work to address the shortage of burial spaces.

The framework follows on from previous work undertaken by the department in 2022 which introduced a state significant development (SSD) pathway for large-scale cemeteries. The SSD pathway facilitates new burial space and provides a consistent approach to the assessment of larger cemetery proposals.

The framework includes detailed controls to address potential risks to groundwater and acid sulfate soils. Complying development certificate conditions will apply to new burial areas to require that burials are undertaken with a depth of no more than 2.8 m below ground level and development standards require a separation distance between grave floor and highest seasonal water table of at least 1 m.

Where land is identified as class 2 land on the Acid Sulfate Soils Map (and for certain work on Class 3 and 4 land), complying development is only permitted where operators can demonstrate that disturbance will remain below the threshold requirement for an acid sulfate soils management plan under the NSW Acid Sulfate Soil Manual 1998.

No, the fast-track approval pathway does not apply to commercial uses within cemeteries as these uses, such as function centres and food and drink premises and shops are not the primary purpose of cemeteries. The intensification of these uses does not align with the framework's objectives, which aim to support the efficient operation of cemeteries.