Housing, housing everywhere but not a DA in sight: the possible consequences of expanding complying development on sensitive coastal environments

By EDO NSW Policy and Law Reform Solicitor Dr Emma Carmody

26 May 2016

Sometimes seemingly separate government reforms can interact in unforeseen ways. Two recent reforms proposed by the NSW Government are a case in point: the expansion of the General Housing Code and the coastal reform package. We need to make sure these reforms work together more effectively so as to minimise impacts on coastal wetlands and littoral (or coastal) rainforests.

Keeping up with the changes

It is difficult to keep up with the plethora of new or amended environmental laws and policies proposed by the NSW Government over the last year or so. Working out how these changes will interact and affect the environment and community is particularly challenging.

This is where EDO NSW can help. As public interest environmental lawyers, we not only keep track of individual reforms, we work out how all the pieces of the law and policy puzzle fit together.  

Recently, we had the opportunity to engage in two completely separate law reform processes proposed by the NSW Government. If passed, these changes could (in combination) have serious impacts on coastal wetlands and littoral rainforests. The proposed reforms concern exempt and complying developments, and coastal management.

Reforms to Exempt and Complying Developments

The NSW Government is proposing to expand the ‘General Housing Code’, which is contained in State Environmental Planning Policy (Exempt and Complying Development) 2008 (Exempt and Complying SEPP).

Briefly, the Exempt and Complying SEPP sets out types of development that do not need to go through the usual assessment and approval process. These are known as ‘complying’ developments. Rather than requiring consent, these developments can be given a green light by a ‘private certifier’, as long as they meet certain criteria (for example regarding height, floor ratio or boundary setback). In other words, complying developments do not need to obtain a development approval from a council or other consent authority.

Under the current General Housing Code, one complying dwelling is allowed on a 200m² lot in residential zones. However, the Government proposes to expand the Code so that up to 10 complying residential dwellings will be permissible on 600m².  That’s a significant expansion by anyone’s measure.

Coastal reform package

The coastal reform package includes a Coastal Management Bill (now before Parliament) and information about the likely contents of a new Coastal Management SEPP (CM SEPP). The CM SEPP, which will be put on exhibition in the coming months, will replace three existing SEPPs: SEPP 71 (Coastal Protection); SEPP 14 (Coastal Wetlands); and SEPP 26 (Littoral Rainforests).

The Government has indicated that the new CM SEPP will include assessment criteria that will apply to developments on or within the 100m buffer zone of either a coastal wetland or littoral rainforest. Essentially, the development can only be approved if there are adequate measures in place to protect the biophysical, hydrological and ecological integrity of the rainforest or wetland in question. However, these criteria do not apply to land zoned residential, to land outside the buffer zone or to complying development.

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Separate reforms combine to create an environmental problem

Presently, the Exempt and Complying SEPP prohibits complying development within a 100m buffer of either coastal wetlands or littoral rainforests. The NSW Government has indicated that it does not intend to alter this buffer zone.

So what’s the problem?

Well, imagine a large block of land subdivided into multiple, 600m² lots with up to 10 complying dwellings on each lot. Now imagine that these complying dwellings are just outside the 100m buffer zone for a coastal wetland or littoral rainforest.  That’s potentially dozens or even hundreds of dwellings that have not been assessed or approved by a consent authority under the Environmental Planning and Assessment Act 1979 (EPA Act) within a short distance of these sensitive coastal ecosystems.

This is particularly concerning as it means there would be no requirement to consider the possible impacts of these dwellings on the environment, including the cumulative impacts associated with such a large number of dwellings.

Furthermore and based on the information we have about the likely contents of the CM SEPP, complying development will also be exempt from the proposed ‘biophysical, hydrological and ecological integrity’ assessment criteria described above.

This is a great opportunity for the Government to demonstrate its commitment to rigorous planning processes AND to protecting what remains of our beautiful coastal wetlands and littoral rainforests.

The solution

So what can be done to avoid the problem described above?

First, we don’t think complying assessment should be expanded to such a significant degree, especially given the ongoing governance issues with private certifiers. We delve into this issue in more detail in our submission responding to the proposal to expand the General Housing Code.

Assuming the Government does not respond to our first recommendation, we suggest in the alternative that the Exempt and Complying SEPP or the new CM SEPP should mandate a larger buffer zone between coastal wetlands or littoral rainforests, and lots with multiple complying dwellings. The size of the buffer zone should be determined by suitably qualified experts, with a view to ensuring that such dwellings will not have unacceptable impacts on these sensitive coastal environments.

The good news is that the General Housing Code has not yet been expanded. Similarly, the Coastal Management SEPP is still being developed, and will eventually be put on public exhibition.

This means that there’s still time for the NSW Government to take on board our recommendations and community concerns about our coastal environment.

It’s also a great opportunity for the Government to demonstrate its commitment to rigorous planning processes AND to protecting what remains of our beautiful coastal wetlands and littoral rainforests.

Sign up to our eBulletin to find out when you’ll be able to have your say about the coastal reforms and changes to housing codes, and check out our Have Your Say resource for more opportunities to engage in decisions impacting the environment.

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