Exempt development is work that needs no planning approval at all. Not a faster approval, not a simpler one. None. In New South Wales, section 1.6 of the Environmental Planning and Assessment Act 1979 (NSW) puts it plainly: “The carrying out of exempt development does not require (a) development consent under Part 4, or (b) environmental impact assessment under Division 5.1, or (c) State significant infrastructure approval under Division 5.2, or (d) a certificate under Part 6 (Building and subdivision certification).” The same section defines exempt development as “development that is declared to be exempt development by an environmental planning instrument because of its minor impact”.
Almost everything written about exempt development is written for homeowners, and it is all decks, garden sheds and repainting a house. That is not useless, but it misses the part that matters on a development site. A developer is rarely asking whether they can build a pergola. They are asking which of the fifty small things that have to happen on a site, before and around the main approval, can happen without waiting for a consent: the site fence, the hoarding, the scaffold, the site shed, the earthworks, the demolition, the signage, the driveway crossing. Those answers sit in the same instruments, they are far more valuable, and they are where the traps are.
The people who hold the inputs here are your town planner, who reads the site against the instrument and tells you what falls inside the exempt provisions, and your certifier or building surveyor, who tells you what still needs a building approval even where planning approval is not required. This guide sets out how the pathway works in each state and territory, what takes a site out of it, what it is worth in programme terms, and what happens when someone gets it wrong. Figures, thresholds, clause numbers and instrument names were current at the date of writing and change often, so the linked primary source is the place to confirm any of them before a decision rests on one.
What does exempt development actually let you skip?
Exempt development removes the approval step entirely, but it does not remove the standards.
In New South Wales, clause 1.15 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 sets a three part test. Development is exempt development if it “(a) is specified in an exempt development code, and (b) meets the standards specified for the development, and (c) complies with the requirements of this Division for exempt development”.
The three limbs are three separate ways to fail. The work has to be a listed type. It has to meet every numerical standard attached to that type. And it has to clear the general requirements that apply across the whole policy. Miss any one and the development is not exempt, which means it needed consent, which means it was unlawful from the moment it started.
The second thing to understand is what exempt development is not. It is not a certificate. Nobody assesses it, nobody stamps it, and there is no document at the end of it. A complying development certificate gives you a piece of paper from a certifier who has taken on the assessment and carries professional liability for it. Exempt development gives you nothing. You form a view, you act on it, and the view is yours. That distinction is the whole risk profile of the pathway, and it is covered further below.
Why does exempt development matter to a developer rather than a homeowner?
Because the exempt provisions cover the enabling works, and enabling works sit on the critical path.
On a typical infill site, the sequence between settlement and a builder mobilising involves a long tail of small activities: securing the site, establishing access, running services for site power and water, temporary signage, site accommodation, investigatory excavation, tree work, and demolition. Some of those are exempt in New South Wales and some emphatically are not, and the difference decides whether a developer can compress that tail into the approval period or has to run it afterwards.
The New South Wales Planning Portal’s temporary uses and structures page sets out the categories that the Temporary Uses and Structures Exempt Development Code covers, and the first two entries on that list are the ones a developer cares about:
- scaffolding, hoardings and temporary construction site fences
- temporary builder’s structures
The rest of that code runs to marquees, filming structures, stages for community events and extended Christmas trading hours, which is why the developer relevance of the provision is almost never discussed anywhere. It is buried in an events code.
The Department publishes the general conditions that attach to every temporary use and structure under that code. On the same page, to be exempt the development must have written consent from the owner of the land, must not restrict car parking or vehicular or pedestrian access to or from the land, must be able to resist loads determined in accordance with the relevant Australian and New Zealand Standards, must be installed in accordance with manufacturer’s specifications and comply with the Building Code of Australia, must be erected on a surface that is sufficiently firm and level to sustain the structure while in use, must have an approval for the use of the land related to the purpose of the temporary structure, must not redirect the flow of any surface water or ground water or cause sediment to be transported onto an adjoining property, and must not result in damage to any protected tree on or adjoining the site. The person carrying out the development must also hold a public liability insurance policy for an amount agreed to by the owner of the land.
Two of those conditions do real work on a development site. “Must not restrict any car parking or any vehicular or pedestrian access to or from the land” is the condition that a hoarding across a footpath will generally fail, and the Department states separately that structures located on public land or over a public road, “even temporary structures”, must have approval from the relevant council or roads authority. So the site fence inside your boundary may be exempt while the hoarding that oversails the footpath is a separate approval under other legislation. That is a distinction worth settling before a programme assumes otherwise.
The other condition is the requirement to have “an approval for the use of the land related to the purpose of the temporary structure”. A temporary builder’s structure is exempt because it is ancillary to approved construction. It is not a way to occupy a site before the consent that authorises the construction exists.
What is the pathway worth in programme terms?
The value is the holding cost of the weeks it saves, which means it scales with land value and falls away on cheap land.
The figures below are illustrative only, are not a market forecast, and are built to show the mechanics rather than to be typical of any particular site.
Take a three townhouse infill project in a Sydney middle ring suburb.
- Gross realisation: 3 townhouses at $1,650,000 each, so $4,950,000
- Land: $1,350,000
- Acquisition costs including duty, legals and due diligence: $81,000
- Construction: 3 at 175 square metres, so 525 square metres at $3,400 per square metre, or $1,785,000
- Demolition, external works and services: $180,000
- Professional fees, authority charges and contributions: $395,000
- Contingency: $120,000
- Selling and marketing at 3 per cent of gross realisation: $148,500
- Finance and holding over a 22 month programme: $322,000
Total development cost is $4,381,500. Profit is $4,950,000 less $4,381,500, or $568,500, which is a development margin on cost of about 13.0 per cent.
Now change one thing. Assume the developer treats demolition of the existing dwelling as exempt, starts it, and is stopped. As the section on the New South Wales codes below sets out, ordinary demolition of a house is not exempt development, and this is the single most common error on the list. The site sits idle while the position is regularised and the programme slips three months.
The changed inputs are the holding period and nothing else. Land and acquisition costs of $1,431,000 carried at an indicative 9.0 per cent per annum is about $10,733 a month, and rates, insurance and land tax might add something in the order of $1,100 a month, so roughly $11,833 a month. Three months is about $35,500.
Total development cost rises to $4,417,000. Profit falls to $533,000, and the development margin on cost falls to about 12.1 per cent. Nearly a full percentage point of margin, from one wrong assumption about a pathway that costs nothing to check. Running the two programmes side by side with their holding costs is the sort of comparison a development cashflow model exists to answer, and the underlying mechanics are set out in our guide to land holding costs in property development.
What the arithmetic shows is that the exempt pathway is worth roughly what your monthly holding cost is, multiplied by the weeks it moves. On a $400,000 regional site it may not be worth the phone call. On expensive land with a tight margin it can be worth more than a design change.
What takes a site out of exempt development entirely?
Certain land and certain building conditions disqualify the whole pathway, regardless of how small the works are.
In New South Wales, clause 1.16 of the Codes State Environmental Planning Policy sets the general requirements. To be exempt development, the development:
- “must meet the relevant deemed-to-satisfy provisions of the Building Code of Australia, or if there are no such relevant provisions, must be structurally adequate”
- “must not, if it relates to an existing building, cause the building to contravene the Building Code of Australia”
- must not be carried out on land that is a declared area of outstanding biodiversity value under the Biodiversity Conservation Act 2016 (NSW) or declared critical habitat under Part 7A of the Fisheries Management Act 1994 (NSW)
- must not be carried out on land that is, or is part of, a wilderness area within the meaning of the Wilderness Act 1987 (NSW)
- must not be carried out on land that is, or on which there is, an item listed on the State Heritage Register under the Heritage Act 1977 (NSW), or that is subject to an interim heritage order
- must not be carried out on land described or otherwise identified on a map specified in Schedule 4 of the policy
Three further limbs of clause 1.16 catch developers regularly.
First, subclause (2). Where the development relates to an existing building classified under the Building Code of Australia as class 1b or class 2 to 9, it is exempt development only if the building has a current fire safety certificate or fire safety statement, or no fire safety measures are currently implemented, required or proposed. On an apartment building or a commercial tenancy, the fire safety paperwork being out of date can therefore take minor works out of the exempt pathway altogether.
Second, subclause (3)(b). The development must “not involve the removal or pruning of a tree or other vegetation that requires a permit, approval or development consent, unless the removal or pruning is carried out in accordance with the permit, approval or development consent”. Tree work is where the exempt pathway most often unravels on an infill site, because the permit requirement usually sits in a council instrument that nothing in the exempt code tells you to look at.
Third, subclause (3)(c) and (4). The development must not involve removal of non-friable asbestos from an area of more than 10 square metres, or any friable asbestos, unless the removal is carried out by a licensed asbestos removalist. The policy also notes that residential buildings constructed before 1990 may contain asbestos. On pre-1990 stock, that limb decides whether a strip-out is exempt.
The heritage exclusion has a useful softening. Under subclause (1B), where a State Heritage Register item is not located on, and does not comprise, the whole of the land, the exclusion applies only to the part of the land described and mapped on the register. Part of a large site can therefore remain inside the pathway even where another part is excluded, which is worth checking rather than assuming the whole title is out.
Which exempt provisions actually matter on a New South Wales development site?
Four groups: temporary structures, demolition, earthworks, and driveways and hard stand. Each has its own standards, and the numbers are tighter than most people expect.
Demolition: much narrower than developers assume
This is the one that catches people. Under clause 2.25 of the Codes State Environmental Planning Policy, the demolition that is specified for the general exempt development code, provided it is not carried out on or in a heritage item, a draft heritage item, a heritage conservation area or a draft heritage conservation area, is:
- demolition of development that is itself specified as exempt development under the code
- demolition of a building the structure of which is significantly damaged by a natural disaster
- partial demolition of a building damaged by a natural disaster where the structure is not significantly damaged, only to the extent necessary to make the building safe
That is the whole list. Demolishing a garden shed that was itself exempt is exempt. Demolishing a house is not. Demolishing a house generally requires consent, either through a development application (DA) or, where the site and the scheme qualify, through the complying development pathway. A developer who reads “demolition” on a list of exempt development types and stops reading has misread the clause.
Where demolition is exempt, clause 2.26 sets a single standard: the development must be carried out in accordance with AS 2601-2001, The demolition of structures.
Earthworks, retaining walls and structural support: 600 millimetres
Clause 2.29 specifies earthworks and the construction or installation of a retaining wall or other form of structural support, provided the work is not carried out on or in a heritage item or a draft heritage item, on a flood control lot, or in an environmentally sensitive area.
Clause 2.30 then sets the standards, and the numbers are restrictive on a real development site. The works must not be a cut or fill of more than 600 millimetres below or above existing ground level, must be located at least 1 metre from each lot boundary, and must be located at least 40 metres from a natural waterbody. Where the work is a retaining wall or structural support for excavation or fill, it must be no more than 600 millimetres high measured vertically from base to uppermost portion, must be separated from any other retaining wall or structural support on the site by at least 2 metres measured horizontally, must be located at least 1 metre from any registered easement, sewer main or water main, and must have adequate drainage lines connected to the existing stormwater drainage system.
Three further standards are easy to overlook. The works must not redirect the flow of any surface water or ground water or cause sediment to be transported onto an adjoining property. Where fill is more than 150 millimetres deep, it must not occupy more than 25 per cent of the area of the lot. And where fill is imported to the site, it must be free of building and other demolition waste and contain only virgin excavated natural material as defined in Part 3 of Schedule 1 to the Protection of the Environment Operations Act 1997 (NSW). The policy notes that it is an offence to transport waste to a place other than an appropriate and lawful waste facility.
For a developer this is worth knowing precisely, because a basement excavation, a benched pad or a levelled building platform will not fit inside 600 millimetres. Site levelling on a sloping infill site is almost always consent work, not exempt work, and treating it otherwise is how a project acquires an unauthorised earthworks problem before a footing has been poured.
Driveways and hard stand spaces
Clause 2.27 specifies the construction or installation of a driveway associated with access to an open hard stand space, carport, loading bay or garage, and of a hard stand space associated with a driveway. The exclusions mirror the earthworks provision: not on or in a heritage item or draft heritage item, not in a heritage conservation area or draft heritage conservation area, not on land in a foreshore area, and not in an environmentally sensitive area.
The clause 2.28 standards include a cut or fill limit of 600 millimetres where the development is ancillary to a dwelling and 1 metre where it is not, construction in accordance with AS/NZS 2890.1:2004 or AS 2890.2:2018 as applicable, connection of surface water or runoff to the existing stormwater drainage system, and a hard stand space of at least 2.6 metres by 5.4 metres and no more than 20 square metres.
One condition here reaches outside the planning system. Where the development is a driveway, it must be “subject to written consent from the relevant roads authority (if required under section 138 of the Roads Act 1993) for the building of any kerb, crossover or driveway”. A vehicle crossing is a Roads Act approval whatever the planning pathway says, and that is a lead time item on a site with a new access point.
The general lesson from the numbers
Read as a set, the New South Wales exempt provisions are drawn for works that do not change the shape of the land or the envelope of a building. Six hundred millimetres of cut or fill, one metre setbacks, standards-compliant construction, no effect on drainage or neighbouring property. The moment a proposal starts reshaping a site, it has left the pathway. That is the correct mental model, and it is more useful than memorising any individual figure.
Who decides whether something is exempt, and who carries the risk?
You do, and you do. There is no assessment, no certificate and no third party liability to fall back on.
This is the structural difference between exempt development and the complying development pathway, and it deserves more weight than it usually gets. A complying development certificate is issued by a council or a registered certifier who has assessed the proposal against the standards and whose registration and professional indemnity stand behind that assessment. Exempt development has none of that machinery. The developer, or the developer’s planner, forms a view that the work is specified, meets every standard, and clears the general requirements. If the view is wrong, the work was carried out without consent and the consequences run to the owner and the person who carried out the development.
That asymmetry tends to shape how the pathway gets used. It is well suited to work where the answer is obvious and the standards are not near their limits: a temporary site fence inside the boundary on a site with no heritage or environmental overlay. It is poorly suited to anything sitting close to a threshold, because there is no one to confirm the call and no document recording that the call was made. Where a proposal is within, say, 10 per cent of a numerical standard, the practical question is not whether it qualifies but whether the developer wants to own that judgment for the life of the asset, including at the point a purchaser’s solicitor asks about it.
A written opinion from a town planner is not an approval and does not make unlawful work lawful. What it does is document the reasoning and put a professional’s name on it, which is worth something both commercially and in any later dispute. Our guide to town planner fees covers what that sort of advice tends to cost against what it protects.
What happens if you get it wrong in New South Wales?
The work becomes development carried out without consent, which is an offence, and the council gains order powers that can require the work to be removed.
Section 4.2(1) of the Environmental Planning and Assessment Act 1979 (NSW) provides that where “an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument”. The Act attaches a Tier 1 maximum penalty to that section.
The tiers are set out in the Act. Under section 9.52, the tier 1 maximum is $5 million for a corporation, plus $50,000 for each day the offence continues, and $1 million for an individual, plus $10,000 per day. Tier 1 penalties apply only where the prosecution proves to the criminal standard that the offence was committed intentionally and caused or was likely to cause significant harm to the environment, or caused the death of or serious injury or illness to a person.
Those are maxima at the top of the scale, lower tiers apply where intent and harm are not proved, and no guide can tell you where any particular matter would land. The number that tends to concentrate minds is not the fine, though. It is the order.
Schedule 5 of the Act lists the development control orders an enforcement authority may give. Among them:
- a demolish works order, to demolish or remove a building, available where a building “requiring a planning approval is erected without approval”, or requiring approval under the Local Government Act 1993 (NSW) is erected without approval, or is or is likely to become a danger to the public, or is so dilapidated that it is prejudicial to persons or property in the neighbourhood, or is erected in contravention of the Act
- a restore works order, to restore premises to the condition they were in before unlawful building or other works occurred
- a stop work order
- a compliance order, to comply with a planning approval
Clause 33 of that schedule allows the enforcement authority to carry out the work itself where an order is not complied with, and to recover its costs from the owner. That is the risk in its sharpest form: not a fine, but a bill for the demolition of something you paid to build.
There is a route back for existing work. Under section 6.25 of the Act, a building information certificate operates to prevent the council “from making an order (or taking proceedings for the making of an order or injunction) under this Act or the Local Government Act 1993 requiring the building to be repaired, demolished, altered, added to or rebuilt”, and from taking civil proceedings in relation to encroachment onto council land, in relation to matters existing or occurring before the date of issue of the certificate. Subsection (4) extends that protection for seven years in respect of deterioration from fair wear and tear. Subsection (5) carves out fire safety orders and building product rectification orders under the Building Products (Safety) Act 2017 (NSW), which a certificate does not block.
A building information certificate is therefore a real remedy, but it is a remedy after the fact, applied for, paid for and not guaranteed. It is not a plan.
Two further consequences are commercial rather than regulatory. Unauthorised work and outstanding orders are the sort of matter that surfaces in due diligence, and the section 10.7 planning certificate is one of the documents a purchaser’s solicitor will read. And work that sits outside a consent cannot be picked up by a later modification of that consent, because there is no consent covering it to modify.
How do the other states and territories handle it?
Every jurisdiction has some version of the pathway, but the names, the mechanics and the breadth differ enough that a New South Wales assumption travels badly.
Victoria
Victoria puts its planning permit exemptions in clause 62 of the planning scheme, titled “Uses, buildings, works, subdivisions and demolition not requiring a permit”. The operative text sits in the Victoria Planning Provisions and is picked up by each council’s scheme, and confirming the current wording for a particular scheme is a job for your planner rather than a general guide.
On enforcement, section 126 of the Planning and Environment Act 1987 (Vic) makes it an offence to contravene a planning scheme, a permit or a section 173 agreement. Planning Victoria’s penalties page sets out the current maximum penalties, which are expressed in penalty units whose dollar value is set annually, so the figure behind them is something to confirm at the time.
Victoria also runs a fast track permit pathway, VicSmart, which is frequently confused with an exemption and is not one. Planning Victoria describes VicSmart as “a simple and fast planning permit process for eligible applications”, decided by the council chief executive or a delegate within 10 business days, with no public notice or objection period. A permit is still applied for and still issued. It shortens the process; it does not remove it.
Queensland
Queensland uses the term accepted development, and the concept is set out in section 44 of the Planning Act 2016 (Qld): “There are 3 categories of development, namely prohibited, assessable or accepted development. ‘Prohibited development’ is development for which a development application may not be made. ‘Assessable development’ is development for which a development approval is required. ‘Accepted development’ is development for which a development approval is not required.” The default rule matters commercially: under section 44(6)(a), if no categorising instrument categorises particular development, the development is accepted development.
Queensland also has a mechanism the other states largely lack. Section 46 of the Planning Act 2016 (Qld) provides that “a development approval is not required for assessable development on premises if there is an exemption certificate for the development”. A local government that would be the prescribed assessment manager can give one, or otherwise the chief executive, where any referral agency has agreed in writing and one of three conditions is met: the effects of the development would be minor or inconsequential, the assessable categorisation resulted from circumstances that no longer apply, or the categorisation resulted from an error. The certificate attaches to the land and has effect for two years or a later stated date, and there is no appeal against a decision to give or refuse one. For a developer sitting on an assessable categorisation that is plainly an artefact rather than a policy position, that is a genuine tool.
On the building side, Schedule 1 of the Building Regulation 2021 (Qld) lists work that does not need a building development approval, including fences no higher than 2 metres other than pool barriers, retaining walls of no more than 1 metre total height with no surcharge loading and set back 1.5 metres from a building or another retaining wall, filling or excavation no deeper than 1 metre, freestanding class 10 structures with a plan area of 10 square metres or less and a height of 2.4 metres or less subject to exclusions, and tents up to 500 square metres. Business Queensland’s guidance on when building approval is not needed makes the separation explicit: minor building work may still require approval under local government planning schemes, and owners are responsible for complying with them.
Western Australia
Western Australia puts its exemptions in clause 61 of Schedule 2 to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA), the deemed provisions that apply to every local planning scheme whether or not a council has incorporated them. Clause 61 works as a table: development approval is not required where the works are of a class specified in one column and, where conditions are set out opposite that item, all of those conditions are satisfied. One of those items covers the erection of, or alterations and additions to, a single house, and the current table is the thing to read rather than a summary of it.
The single house exemption comes with a mechanism worth knowing. Clause 61A allows an owner to ask the local government for written advice that development approval is not required because of the single house exemption. The Western Australian Government’s own description of the effect is precise: “A ‘deemed-to-comply’ check enables local government to ensure compliance with the Residential Design Codes, allowing such development proposals to progress straight to the building approval stage, which is still a requirement.” That is a planning exemption confirmed in writing by the authority, which is a materially better risk position than a self-assessment.
The final words of that quote are the general rule everywhere. Section 9 of the Building Act 2011 (WA) states that “a person must not do building work unless (a) a building permit is in effect for the building work” or one of the listed exceptions applies, and section 10 applies the same rule to demolition work. Penalties attach to both.
South Australia
South Australia starts from the other end, by defining what counts as development at all. Section 3 of the Planning, Development and Infrastructure Act 2016 (SA) defines development to include a change in the use of land, building work, the division of an allotment, prescribed earthworks and a list of other matters, “but does not include an act or activity that is declared by or under the regulations not to constitute development for the purposes of this Act”. Building work in turn means work in the nature of “the construction, demolition or removal of a building (including any incidental excavation or filling of land)” or other prescribed work, excluding anything the regulations exclude.
The practical consequence is that South Australia has both exclusions from the definition of development and an exempt category within the assessment pathways. The Government’s assessment pathways page states that “exempt development are minor projects that don’t require any approval” and that activities excluded from the definition of development, or that do not require approval, “are listed under Schedules 4, 4A, 5 and 13 of PDI (General) Regulations 2017”.
The next tier along is distinctively South Australian and useful to a developer. The same page states that “accepted developments are minor projects that need to be structurally sound, for example a carport or a shop fit-out”, and that accepted development “only requires building consent as part of its approval. No planning consent is required”. Accepted development in South Australia also covers detached homes in Master Planned Neighbourhood and Master Planned Township zones that meet set planning requirements, temporary accommodation in designated areas for seasonal and essential infrastructure workers, and temporary accommodation for people affected by flooding. A planning pathway that dispenses with planning consent but keeps building consent is a middle position that most jurisdictions do not offer, and on the right zoned land it is a genuine programme saving.
Tasmania
Tasmania runs five categories rather than a single exempt or not exempt split. The State Planning Office states that a planning scheme “can categorise use or development as either: Exempt / No permit required / Permitted / Discretionary / Prohibited”, and that “it is an offence to proceed without the planning permit”. The same page is the place to confirm the current position.
Exemptions for minor or low impact use and development are in the scheme rather than the Act. The State Planning Office states that the Tasmanian Planning Scheme “lists a range of exemptions for minor or low impact use and development. These exemptions are contained in clause 4 of the TPS and include requirements that must be met. If the requirements are met, it means that you do not require a planning permit from the local council.” Separately, certain matters are excluded from the scheme altogether by other legislation, including dam works under the Water Management Act 1999 (Tas), forestry on declared private timber reserves, and licensed mineral exploration.
On the building side, Tasmania sorts work into low-risk work, notifiable work and permit work. Section 20 of the Building Act 2016 (Tas) empowers the Director of Building Control to make a determination in respect of “types of building work, plumbing work or demolition work that is low-risk work, notifiable work or permit work”, and that determination is what assigns particular work to a category. The State Planning Office also states that a relevant planning permit must be issued by the council, where one is required, before building approval can be provided.
Australian Capital Territory
The Australian Capital Territory runs the most structured exempt regime in the country, under the Planning (Exempt Development) Regulation 2023 (ACT). Projects must meet general criteria and, depending on the project, a list of specific requirements. ACT Planning states that to be exempt a project must not breach the Urban Forest Act 2023 (ACT), the Environment Protection Act 1997 (ACT), the Nature Conservation Act 2014 (ACT) or the Heritage Act 2004 (ACT), must comply with the lease, and must not increase the number of dwellings on a block to two or more. In a leasehold territory, that lease compliance criterion is doing a great deal of work, and it has no analogue in the freehold states.
The Territory also offers a device the other jurisdictions lack. An exemption declaration, which ACT Planning describes as “a type of planning approval”, is available to single dwelling homes that meet the relevant development controls except for one or more minor departures. Section 1.131 of the Regulation allows the Territory Planning Authority to issue one, allowing work to continue being exempt from requiring a development application (DA). The eligible departures are front, side and rear setbacks, the building or solar envelope, courtyard wall setbacks, and minimum private open space dimensions. The Authority must be satisfied the non-compliance is minor, will not adversely affect anyone but the homeowner, will not increase environmental impact, and that neighbours have been given information. The decision timeframe is 10 working days, an approved declaration lasts three years, and there is no review right to the tribunal. For a near miss on a numeric control that would otherwise force a full development application (DA), that is a fast and cheap fix.
Section 1.18 of the Regulation is the neighbour notification limb. ACT Planning’s guidance on the same page describes the evidence required as a completed summary of written information to adjoining residents, comprising an information sheet stating that development is proposed for the site, plus, for a single dwelling, copies of each site plan and elevation plan, and shadow diagrams where the solar building envelope is affected. Written information may be given by leaving it at the neighbouring dwelling.
Building approval remains separate. ACT Planning states that “if you want to do building work, you’ll usually need a development approval, or be exempt from requiring a development application, and a building approval (BA)”, and notes there are no building approval exemptions for detached houses, which are class 1 buildings. A house that is exempt from a development application (DA) in Canberra still needs building approval.
Northern Territory
The Northern Territory places its exemptions in the planning scheme rather than the Act. The Territory Government states that exempt uses “are listed as exceptions in Schedule 3 of the NT Planning Scheme”, covering minor development types such as small shade sails, temporary land uses including community events and post-disaster emergency accommodation, vital infrastructure including roads, electricity, water, sewerage, gas and telecommunications, and some remote town subdivisions.
Separately, the Territory uses four assessment categories: permitted, merit assessable, impact assessable and prohibited. A permitted use, being one described as unlikely to have a negative impact, needs no development permit where it meets the zone and development requirements and no overlay applies. That is a second route to no approval, and it is distinct from the Schedule 3 exceptions. The same page states that building works cannot start until a building permit has been granted under the Building Act 1993 (NT), and that a building permit may be required even on unzoned land within a building control area.
Does an exemption from planning approval also exempt you from a building approval?
No, and this is the single most consistent rule across every Australian jurisdiction.
Planning approval and building approval are two systems with separate legislation, separate decision makers and separate triggers. An exemption in one says nothing about the other, in either direction.
The legislation says so on its face. Schedule 3 of the Building Regulations 2018 (Vic), which lists building work exempt from requiring a building permit, repeats an express note across its items: “Certain building work that does not require a building permit may require a planning permit under the Planning and Environment Act 1987.” Western Australia’s clause 61A pathway ends at “the building approval stage, which is still a requirement”. Business Queensland states that minor building work exempt from building approval may still require approval under a local government planning scheme. Tasmania’s State Planning Office states that a planning permit must issue before building approval can be provided. ACT Planning states there are no building approval exemptions for class 1 buildings at all.
Victoria’s Schedule 3 also illustrates how differently the building exemptions are drawn from the planning ones. It exempts, among other things, small freestanding class 10a buildings of 10 square metres or less and 3 metres or lower, reduced to 2.4 metres within a metre of a boundary; demolition of a freestanding class 10 building of 40 square metres or less that is not masonry and not heritage listed; temporary construction and display buildings; fences up to 2 metres, with lower limits near a street depending on material; retaining walls under 1 metre not associated with other building work; and repair, renewal or maintenance of part of an existing building. The repair and alteration items carry a standard qualifying formula: the work must not “adversely affect the structural soundness of the building” and must not “adversely affect the safety of the public or occupiers of the building”.
The temporary construction and display buildings item shows the split. A site shed and a display suite can be exempt from a Victorian building permit while still needing to be checked against the planning scheme. Those are two different questions asked of two different people, and a programme that conflates them will be wrong about one of them.
How does New Zealand handle it?
New Zealand splits the question the same way Australia does, into a building consent limb and a resource consent limb, and the building limb is the more generous of the two.
Schedule 1 of the Building Act 2004 lists building work for which a building consent is not required. The Ministry of Business, Innovation and Employment publishes guidance on the schedule organised into fifteen categories, which include general alterations, maintenance and removal, detached standalone buildings, platforms, decks and bridges, shelters, shades and carports, fencing and restrictions, signage, support structures, other structures, and network utilities. Fences and hoardings not exceeding 2.5 metres in height above the supporting ground are exempt, with residential pool fencing outside the exemption.
The most commercially significant recent change is the small standalone dwelling exemption. The Ministry states that the granny flats exemption, known in legislation as non-consented small standalone dwellings, sits under Schedule 1A of the Building Act 2004 and “enables eligible dwellings of up to 70 square metres to be built without a building consent, provided they: meet specific design and construction conditions, and are built or supervised by licensed building professionals”. A seventy square metre dwelling delivered without a building consent is a materially different proposition from anything available in the Australian states, and on a New Zealand site with capacity for a second dwelling it changes the arithmetic.
The planning limb is the permitted activity concept under the Resource Management Act 1991. An activity described as permitted in the Act, in regulations, or in a plan or proposed plan does not require a resource consent, provided it complies with the conditions attached to it. Our guide to resource consent in New Zealand covers how that sits inside the wider consent process.
That framework is in transition. The Ministry for the Environment states that the Resource Management Act 1991 is to be replaced by two acts, a Planning Act covering land use planning and regulation, and a Natural Environment Act covering the use, protection and enhancement of natural resources. Confirming where that reform has landed before relying on the permitted activity framework would be sensible. Our guide to the Resource Management Act reform tracks the shape of the replacement.
What are the traps that catch developers specifically?
Six recur often enough to be worth naming.
Assuming demolition is exempt. It is the most expensive misreading on the list in New South Wales, and the one the worked example above is built around. Clause 2.25 exempts demolition of exempt structures and of buildings damaged by natural disaster. Not houses.
Assuming site levelling is exempt. Six hundred millimetres of cut or fill is a shallow number. Anything resembling a benched building platform on a sloping site is outside it.
Forgetting that the hoarding leaves your land. A fence inside the boundary and a hoarding over the footpath are different legal problems. The Department is explicit that structures on public land or over a public road, even temporary ones, need approval from the council or the roads authority.
Missing the tree permit. Clause 1.16(3)(b) takes the whole development out of the exempt pathway if it involves tree or vegetation removal requiring a permit, and the permit requirement usually lives in a council instrument that the exempt code does not mention.
Treating a planning exemption as a building exemption. Every jurisdiction says otherwise, usually in the text of the exemption itself.
Not writing anything down. There is no certificate at the end of exempt development, so the only record that anyone thought about it is the record you create. A dated file note from your planner setting out the clause relied on, the standards met and the land checks done costs very little and is the only thing that exists if the question is asked in three years by a purchaser’s solicitor.
What to ask your town planner
These are the questions that decide the answer on your own site, and this guide deliberately does not answer any of them.
- Which exempt development code or scheme provision covers each item on my enabling works list, and which items are not covered at all?
- Is any part of this site on a map that takes it out of the exempt pathway, and if so, does the exclusion apply to the whole title or only the mapped part?
- Is there a heritage item, draft heritage item, heritage conservation area or interim heritage order affecting this land or anything on it?
- Does any tree or vegetation on or adjoining the site require a permit for removal or pruning, and under which instrument?
- What is the flood, acid sulfate soil, contamination, foreshore and environmentally sensitive land position on this site, and which of those matter for the exempt pathway rather than only for the main approval?
- How close is each proposed item to its numerical standard, and which ones are close enough that you would not want to rely on the exemption?
- Which of these works need an approval under other legislation even if the planning position is clear, for example a roads authority consent for a crossover, or a council approval for a structure over the footpath?
- Will you put the clause relied on, the standards, and the land checks in writing, and what are the limits of that advice?
- If something here has already been built without approval, what is the realistic path to regularising it and what does that path cost and take?
What to ask your certifier or building surveyor
- Which of these works needs a building approval even though no planning approval is required?
- Does this building have a current fire safety certificate or statement, and does that affect whether minor works on it can be exempt?
- Does any of this work involve removal of non-friable asbestos over the area threshold, or any friable asbestos, and does that require a licensed removalist?
- Which Australian Standards apply to each item, and who is certifying compliance with them where there is no certificate?
- If this work is done under an exemption, what documentation should exist at the end of it for a future purchaser, financier or valuer?
- Where the work relates to an existing building, does it cause that building to contravene the Building Code of Australia in any respect?