Congratulations, you’ve bought a new property, and you’ve saved your pennies to have your new home designed, the old house knocked down, and your dream home built from the ground up. Before you get started, you should be aware of what legal obligations you have and what legislation will dictate the directions your home design takes.
Firstly, you should be aware of the potential legislation and regulations which might impact your development. In New South Wales we have a hierarchical structure and at the top sits the Environmental Planning & Assessment Act (EP&A). This is followed by the Environmental Planning & Assessment Regulations (EP&AR), then environmental planning instruments which include the State Environmental Planning Policies (SEPP) & Local Environmental Plans (LEP), finally followed up by each local councils Development Control Plans (DCP). LEP’s and DCP’s are controlled by local councils. Your architect will generally assist with designing your home in accordance with the relevant controls and policies and may engage a town planner who is well versed in these laws and regulations.
You need to be aware of any restrictions on the title of your property. If you’ve got a dutiful conveyancer, they should have made you aware of any restrictive covenants or easements on the property which will influence where you can build or can’t build. This could be a tree that cannot be removed, how the land can be used or services that must be maintained such as drainage. These appear on a title search and if one appears, you need to ensure you also have made a request for the covenant or easement record.
Next, you should review whether you are going to require a complying development certificate (CDC) or Development Approval (DA) before you build. CDC’s apply to most straightforward property developments, however if your development may have a major environmental impact or impact amenity of those around your development then you will need to obtain a DA. A CDC might be applicable to a building which is up to two storeys, renovating an existing house, or building a swimming pool. A DA may be applicable where the house is outside the parameters of a CDC and if you are wanting to include something that is outside the normal development controls you will need to apply for a variation. In some circumstances you may be able to do a Pre-DA assessment. This allows you to obtain guidance on whether your DA will be approved before you submit for approval.
So what is an LEP and DCP? LEP’s and DCP’s are regulations and controls set by local councils which oversee developments in each local government area, but compared to the LEP, a DCP is more flexible and variations in respect of a DCP are more likely to be approved with a valid argument. LEP’s assist councils with decision making in respect of zoning and development controls.
You should also understand that what you might get approval for today, will not be the same as what you may or may not get approval for tomorrow. Building codes, regulations and laws change frequently and it is important your architect and town planner are keeping up-to-date with currently changes and trends in this area. Planning and development can be increasingly complex and the added frequency of changes in building regulations can cause difficulties when in the design phase. The NSW Planning portal contains all information to assist you in getting started.
If all goes well and your architect and town planner have taken you through your options for your design, complied with all relevant legislation, the local LEP and DCP and reviewed any option for variations then you will now be ready to apply for your DA or CDC. DA’s and CDC’s are applied for through the NSW Planning portal and reviewed by your local council. If your local council requires further information, they will respond in writing with the request for your response. If you are applying for a DA, when the council makes a request for information the time limit for them to assess the DA stops. This is known as “stopping the clock”. For most DA’s local councils have 60 days to assess your application before providing a response. If they do not review your DA in that time, then you have the right under the EP&A Act to appeal the council’s deemed refusal. You must appeal a deemed refusal within 6 months of the end of the 60-day assessment period.
The process from purchase to finalisation of your build is a long one, and you may want to move in as soon as possible. Before you do, ensure you have obtained an occupation certificate. The EP&A Act requires that an occupation certificate must be issued before you start living in your new home and getting comfortable. If you don’t get an occupation certificate you risk voiding any warranties, insurances and protections under consumer law. Occupation certificates are issued following an inspection for defects which can be carried out either by a private certifier or a council certifier. If there are serious defects, you will need to rectify these before the certificate is issued.
This is a simplified overview of what is required and is not a substitute for tailored advice by a suitably qualified professional. If you would like further advice or wish to get further information, please contact us.
