Complying Development Code

Presentation on the Complying Development Code – preceding CWWPA General Meeting 15 September 2022

The CWWPA General Meeting on 15 September 2022 was preceded by a presentation on the Complying Development Code (CDC) provided by Máire Sheehan, from the NSW Better Planning Network.

[Máire is on the Better Planning Network Leadership Group; was a councillor on Leichhardt Council from 1995- 2008 as well as being Mayor for two terms (1995-1996 and 1999-2004.) Maire was on the board of the Local Government NSW from 1999 – 2008. In addition to this she has various project management credentials and provides governance training for councils in NSW.]

Potential framework for addressing complying developments

Nick Lochrin provided an introduction and potential framework to addressing complying developments, highlighting areas where Máire might provide valuable input and where the new website might be able to support actions moving forwards in a coordinated way:

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Refinement of the framework and development of actions within it were recommended for discussion in subsequent meetings.

Nick and Meg’s Story

Residents in Willoughby LGA and elsewhere have increasingly spoken of frustrations with the construction of buildings under the CDC. CWWPA members, Nick Lochrin and Megan Gambi, recently raised the impact of a CDC development on their homes and neighbourhood. At the presentation, Nick spoke briefly on the difficulties encountered with a nearby CDC demolition and build. He noted that he and other nearby residents:

• received a backdated notice of demolition on the day it was due to start;

• had no way to object or reach a compromise;

• the only point of contact was a Private Certifier who appears irregularly and signs off work after it is done;

• had no redress for demolition work not performed in line with the notice, including possibly illegal and unsafe asbestos removal;

• were refused access to the plans and needed to lodge freedom of information requests with Council;

• had no redress for consistency with neighbourhood amenity – the plans were a ‘’from another development referencing the “Georges River foreshore”;

• had no redress to stop existing fencing and plant destruction which was done without consent;

• needed to seek legal action to gain attention to stop encroachment on the boundary and ensure negotiations for fencing to be mutually agreed and consistent with area; and on top of that, the new two-storey duplex construction was adjacent to conservation listed houses!

Nick and Meg’s major aim is to ensure that others are alerted to the problems and costs of CDC developments next door. They are also keen to see CDC developments that are more transparent, comply with proper standards and are performed with integrity and consideration for nearby residents. To date they have surveyed members and spoken with Tim James, Willoughby’s MP.

An Outline of the CDC

Máire stepped us through the massive changes made to the planning system over the last decade and a half. A number of development pathways are now in use including the CDC.

A Rapid Assessment Framework was also introduced under Covid-19 legislation but parts of its provision have been included in relevant legislation.

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Máire was unable to offer much comfort in relation to dealing with CDC developments when they cause issues. The CDC basically means the developer is able to take less steps than for a local Development Applicant:

“Although neighbours must be notified of some proposed complying development, consultation

isn't required, and neighbours aren't required to be given a copy of building plans.”

The developer can use either a private certifier or a council-employed certifier to certify complying development but increasingly they are using private certifiers who sign off on all their developments. The principal certifier inspects the development at certain stages to ensure it meets legislative requirements and conditions of consent. They don’t supervise or manage the work.

Legally, the developer doesn’t have to tell anyone anything about what they are doing. You can make a freedom of information request (now known as a Government Information Public Access request or CIPA) for information but it will probably take a minimum of 4 weeks to get access to the plan. Meanwhile, any work next door can continue.

Powers of local councils

To enforce development compliance, local councils have the power to issue an order, stop work notice or a fine if building work breaches legislative requirements or conditions of consent.

Although a council may choose to exercise its powers even if a private certifier – not the council – is the ‘principal certifier’, in such circumstances the council will often refer the matter to the certifier in the first instance. The council still retains power to act if the certifier cannot resolve the matter.

Urgent non-compliance matters such as dangerous excavation should be directed to the council for immediate attention; although Máire noted that many Councils and state agencies have seen staff numbers reduce and find it hard to respond rapidly.

It should be noted that to challenge any interpretation of the CDC application, residents have to use the legal system. Also, even though the adjoining houses were part of a heritage listing, this didn’t appear to a barrier to the development.

In regard to alleged unsafe practices by the workers, Máire noted that the legislation around asbestos removal is focussed on the workers rather than those nearby. If asbestos is less than 10 sq metres it can be removed without a licensed remover. There are no requirements to notify neighbours.

See https://www.safework.nsw.gov.au/hazards-a-z/asbestos

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Questions and Comments

In response to questions after the presentation, Máire agreed that currently there are problems with the way the CDC used private certifiers. There was a need for regulators to supervise and she noted that the independence of some private certifiers had been questioned.

Councillor Brendon Zhu noted that the Willoughby City Council has called on the Government to consider reforms of the CDC process. Councillor Zhu noted that actions were being taken to present a motion at the upcoming NSW Local Government conference for a “taxi rank” model for allocation of private certifiers rather than the current approach where developers select their own private certifiers. This approach has been taken up by the register of environmental assessors so it is hoped that it will be advocated by the body covering private certifiers.