Subdivision via CDC and Proposed Changes to Low-Rise Housing Diversity Code

It has now been a few years since the implementation of Part 3B - Low-Rise Housing Diversity Code (“Low-Rise Code”) within the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (“The Codes SEPP”) and with the proposed changes to this legislation that are currently on exhibition it’s a great time to review its implementation and the future for it.

The Low-Rise Code allows a developer/homeowner to get approval for the following development types via a Complying Development Certificate (“CDC”):

• ·Dual Occupancy

• ·Multi-Dwelling Housing (Terraces

• ·Manor Housing

Being able to get approval for the above development types via Complying Development Certificate means an extremely reduced approval pathway, days as opposed to months or years, and means you as the developer are not required to go to Council as Complying Development Certificates can be issued by Registered Certifiers.

In addition to the faster building approval it also means you can get a Subdivision Complying Development Certificate, from a Subdivision Certifier like SubCerts and complete a Torrens or Strata Title Subdivision or sell of each side of the duplex separately to maximise your profits.

The process from approval to completion is straight forward and SubCerts recommends the following process:

1. Obtain Building CDC from Building Certifier

2. Obtain Subdivision CDC from SubCerts

3. Build your dual occupancy, multi-dwelling housing (terraces) or Manor house

4. Obtain your Occupation Certificate from your Building Certifier

5. Obtain your Subdivision Certificate from SubCerts

The main test for whether you can get a CDC for you duplex is related to two items:

• ·Is it permissible in the Councils LEP?

• ·Is your lot big and wide enough?

Firstly, currently it is a requirement that dual occupancy/duplex or Multi-Dwelling Housing is permissible under the Local Environmental Plan (LEP) in the zone that you are located in. For example, City of Canada Bay allows Dual occupancies in R2, however Liverpool Council doesn’t. This means a Dual occupancy CDC is possible in City of Canada Bay, however not in Liverpool Council.

Secondly, your land needs to be big enough. Under the Codes SEPP the minimum lot size is 15m wide and 400m2 for a standard front facing duplex, UNLESS the local Council has a minimum lot size for dual occupancies and then your lot needs to meet that size, for example City of Canada Bay requires a minimum lot size of 450m2 for dual occupancies, where-as Manly has no minimum lot size so you only require 400m2.

Please note that it is only the land size that may vary between Councils and not the lot width, as this is set by the Codes SEPP and not Councils LEP.

In order to not make this the length of a university thesis, in our next installment I will go into depth in regards to the development standards and documents required to achieve your dual occupancy and subdivision via CDC.

Proposed Changes to Legislation

Dual Occupancies

In December 2023 the Minns Labour government announced some proposed planning changes to assist with the issue around housing affordability.

One of the changes was to the Low-Rise Housing Code, where one of the biggest current impediments to the implementation of the Low-Rise Code is that dual occupancies must be permissible in the zone to be able to develop via CDC. This means that in Councils like Liverpool, Hornsby, Strathfield, Inner West, Ku-Ring-Gai and Woollahra home owners are unable to build dual occupancies, or duplexes in R2 zoned land.

In the proposed changes to the legislation, as listed within the Explanation of Intended Effects, available below, is that dual occupancies will be able to be built via CDC in any R2 zoned land as long as the lot size meets the requirements. This has the potential to open up large amounts of land that previously were unable to be developed with a dual occupancy because of Councils development controls.

https://www.planningportal.nsw.gov.au/draftplans/exhibition/explanation-intended-effect-changes-create-low-and-mid-rise-housing

Further to this it also proposes to allow for the subdivision of these dual occupancies via CDC. This is significant for Councils such as the Hills Shire Council, where even though dual occupancies are permissible, the subdivision of them is not, which has meant almost no dual occupancy CDC’s have been issued as the real value in doing so is the creation of another lot that can be sold off separately. Under the proposed changes it appears the subdivision of the dual occupancy will be permissible so this will open up some very desirable developable land in some of Sydney’s most desirable suburbs of the North-West.

It must be noted that the explanation of intended effects doesn’t speak to the requirement to meet the Councils minimum Lot size, which means the Councils above may have the opportunity to amend their LEPs to introduce a minimum lot size for dual occupancies that could render this change mute, i.e. introduce a minimum lot size of 1000m2 for a dual occupanies so as to reduce the amount of lots that will benefit from this change.

Amendments to an LEP can take a considerable amount of time, for example 12months, so it may be worthwhile in these Council areas to prepare your applications to be ready to be lodged with your building Certifier and SubCerts, your Subdivision Certifier, as soon as the proposed amendments are adopted.

Multi-Dwelling housing (Terraces) and R2 Zoned Land

Another significant change is the ability to build Multi-Dwelling Housing (Terraces) in R2 zoned land if it is within a Station and Town Centres Precincts, which is:

The station and town centres precincts are proposed to be:

• Within the Six Cities Region; and

• 800m walking distance of a heavy rail, metro or light rail station; or

• 800m walking distance of land zoned E2 Commercial Centre or SP5 Metropolitan Centre; or

• 800m walking distance of land zoned E1 Local Centre or MU1 Mixed use but only if the zone contains a wide range of frequently needed goods and services such a full line supermarkets, shops and restaurants.

• The Department is seeking input from Councils to determine which E1 and MU1 centres contain an appropriate level of goods, services and amenities to be included.

Currently in almost all NSW LEP’s you are unable to build multi-dwelling housing in R2 zones, so this proposed change will open up a large amount of land that falls within the R2 zoned land that can have terrace style housing built and subdivided on it.

Its important to note that these changes are currently still on exhibition until 23 February 2024 so all changes are proposed and may be change or not adopted at all.

If you have any questions around Subdivision via Complying Development Certificate, development via the Low-Rise Housing Diversity code or the proposed changes please contact Craig directly on 0478 887 164 or email the team at SubCerts on info@subcerts.com.au.

Craig Hopfe, The author of this content, is a Registered Subdivision and Strata Certifier and is a Subdivision Certification specialist having run subdivision development assessment teams, including Town Planners, Development Engineers, Construction Engineers and Subdivision Assessment Officers, in Councils for over a decade and been responsible for the review and issue of Development Consents, Subdivision Works Certificates and Subdivision Certificates for all scale of development.