3. COMPLYING DEVELOPMENT (CD) (Part 4, Division 3 EPA Act)

If permissible under an EPI, development may be considered 'complying'. This allows an applicant to obtain a complying development certificate (CDC) which formally combines the consent the development consent and to proceed with the complying works determined under:

• SEPP (Exempt and Complying Development Codes) 2008

PROCESS FOR APPLICATION

1. An applicant can apply to a certifying authority (Council or an accredited certifier) for a CDC

2. Council or an AC determine whether:

   1. If the proposal is complying development

   2. If the proposal complies with the development standards

   3. If the LEP and DCP contains provisions for CD, that the proposal complies with those provisions

• Note that council or an AC cannot refuse to issue a CDC due to a building product or system not complying with a requirement of the BCA if it is accredited for that requirement (under Part 12 EPA Regs). The Council or AC do not incur liability for this (Section 84A (5) EPA Act)

3. (C 129B Regs) An inspection before issuing a CDC must take place. If the works affect an existing building that is class 1b to 9, the inspection must include:

• The parts of the existing building to be affected by the works, and

• The egress routes from those parts

The inspection must be recorded per (C 129C) and Council are required to be notified under (C 129D) (fire safety issues) if required.

(C 129B (2) The inspection doesn't have to be performed if the CDC relates only to fire alarm comm link work.

3. (S 85A EPA Act) A CDC cannot be forwarded to an applicant unless the LSL has been paid, or if payable by installments, the first installment.

DETERMINATION

The certifying authority can issue the determination by:

1. Issuing the CDC unconditionally

2. Issuing the CDC conditionally (under the Regs, an EPI or DCP)

• Mandatory conditions are under:

  • (Part 4 Div 6 EPA Act):

• Development contributions

• (Part 7 Div 2A Regs) :

• Insurance under Home Building Act 1989

• Notices to neighbours

• Erection of signs

• Notification of Home Building Act requirements

• Fulfilment of BASIX

• Asbestos

• Shoring and adjoining property

• Traffic generating works

• Works on contaminated land

• Contributions and levies

• Security payments

3. Refusing to issue the CDC

(C 130 AA) The certifying authority must determine the CDC within 10 days, or if the development requires notice (under C 130AB) then 20 days.

(C 130 Regs) A CDC cannot be issued for building work unless the proposed building (not being a temporary dwelling i.e. site office) will comply with the BCA (the version in force at the time the application was made).

Determination of Alternative Solutions

(C 130 (2)) Works involving alternative solutions cannot be issued CDCs, unless:

The building work is in respect of:

• a Class 9a with a total floor area of 2000m2 or more, or

• any building (other than 9a) that proposes a:

  • A fire compartment with a total floor area of more than 2000m2, or

  • A total floor area of more than 6000m2

and

either a compliance certificate under (S109C (1) (a) (v) EPA Act) or a written report that includes a statement that the alternative solution complies with the BCA performance requirements, provided by an accredited fire safety engineer. If the engineer provides the written report, they can incorporate the details of the alternative solution in the report.

Or:

Buildings with Existing Alternative Solutions (Fire Safety)

(C130 (2E) Regs) Requires a written report by another certifier accredited to issue a CDC for the existing building to be altered internally or for a change of use that includes a statement that the development is consistent with (i.e. will not effect) that alternative solution (fire safety). (Only allowed for internal alterations or change of use.)

DEVELOPMENT STANDARDS TO BE ASSESSED FOR DETERMINATION

• (C 131) Change of use

• (C 132) Alterations, additions and extensions

• (C 133) Temporary structures

WHAT A CDC MUST CONTAIN (C 134)

1. The identity and signature of the certifying authority (in addition, if the certifying authority is an accredited body corporate, the identity of the individual who issued it.

2. If the certifying authority is an accredited certifier, the accreditation number of the authority (again, if the certifying authority is an accredited body corporate, the accreditation number of the individual who issued it.)

3. The date of certificate and the date it lapses

4. Statement to the effect that the works are complying development and if carried out as specified will comply with all applicable development standards and with other requirements prescribed.

5. Classification of building

6. If issued conditionally, any conditions imposed under the Regs only (not an EPI or DCP)

7. If issued under the SEPP (Exempt and Complying Development Codes) 2008, the certificate must:

   1. Specifiy the land use zone

   2. If not zoned under (S 33A (2) EPA Act) of an EPI then an equivalent named zone for the EPI

FILING OF CDC

• A CDC must be accompained by:

  • A fire safety schedule (if required)

  • Copy of relevant plans endorsed by the certifying authority

• If the development is on bushfire prone land, the CDC and associated documents under (C 130A (1)) must be sent to the NSW Rural Fire Service and to the council, if council is not the certifying authority.

COMMENCEMENT OF COMPLYING DEVELOPMENT

• (S 86 (1) EPA Act) Note that the commencement provisions for the erection of buildings for complying development are the same as for those that require development consent except of the requirement to hold a CDC as opposed to a CC.

• For the commencement of subdivision under complying development refer to (S 86 (2) EPA Act)

• Commencement provisions do not apply to Crown development (S 86 (3))

DURATION, NOTIFICATION AND MODIFICATION

• A CDC operates from the date of issue (date on certificate)

• A CDC has a duration of 5 years and does not lapse if development commences within the duration of the CDC.

• A CDC's duration cannot be extended (S 86A (4) EPA Act).

• CDCs can be modified under (S 87 EPA Act)