Posted on November 5, 2013 by

Exempt development under Infrastructure SEPP

The recent decision of the Land & Environment Court  in Woodhouse v City of Sydney Council [2013] NSWLEC 182 considers the way in which the exempt development provisions in the State Environmental Planning Policy (Infrastructure) 2007 (ISEPP) operate.

The decision is one of the few decisions of the Court dealing with exempt development and involves works to the playground in Fitzroy Gardens in Kings Cross, including the erection of a canopy over the playground.

Part 2 Division 4 of the ISEPP contains the general provisions regarding exempt development. It contains only 2 clauses, clause 20 and 20A.

Clause 20 contains general requirements for exempt development such as that the development must comply with the BCA and have minimal impact on heritage items. Clause 20 specifically states that it applies to any development that the ISEPP specifies as exempt development.

Clause 20A provides that development for a purpose listed in Schedule 1 is exempt development if it is carried out by a public authority and complies with the development standards in Schedule 1 and with clause 20. Clause 20A does not state that it applies to all development specified as exempt development by the ISEPP. Rather it is a provision which specifies certain types of exempt development, subject to compliance with the standards.

Part 3 of the ISEPP contains development controls for specific types of development. Many divisions in Part 3 specify development as exempt development.

Relevantly clause 66 is contained in Division 12 of Part 3 which relates to parks and other public reserves. Clause 66 specifies that the construction of shade structures by a public authority in connection with a public reserve is exempt development if it complies with some specified preconditions, and with clause 20 (it does not mention clause 20A and Schedule 1).

The question before the Court was whether the proposed works, which fell within clause 66 would only be exempt development if the canopy also complied with clause 20A and the development standards in Schedule 1.

Biscoe J held that clause 20A can apply to works specified as exempt development elsewhere in the ISEPP.

He rejected an argument that the canopy was only a component of the development and therefore the development was not for the purpose of a canopy, such that Schedule 1 did not apply.

Clause 20A only applies to works carried out by public authorities. His Honour’s decision is  to the effect that if a component of development which is exempt development under Part 3 of the ISEPP is also listed in Schedule 1 and is to be carried out by a public authority, then unless the development standards in Schedule 1 are complied with, the development will not be exempt development.

It seems to me that what the decision ignores is the fact that whilst clause 66 (and other clauses in Part 3 specifying exempt development) refers to the need to comply with clause 20, and clause 20 specifically applies to all exempt development under the ISEPP, there is no similar link between clause 20A and clause 66 (and other exempt development clauses in Part 3).

Furthermore, clause 20A is directed at specifying certain types of development as exempt development (subject to standards), and clause 20 is directed at imposing requirements on ALL exempt development (whether specified by clause 20A or under Part 3). Therefore, the fact that clause 20 applies to all exempt development should not mean that similarly clause 20A applies to all exempt development by public authorities.

In my view it could reasonably be argued that different standards are intended to apply to a canopy to be erected in a public reserve (under clause 66), and one to be erected elsewhere (such as over a footpath, when clause 66 would not apply but clause 20A and the development standards in Schedule 1 would).

These arguments are not considered in the judgment. I therefore have some doubt about the correctness of the decision.

Nevertheless, until there is further consideration from the Court on this issue, currently the law is that clause 20A and the development standards in Schedule 1 will apply to any development which the ISEPP specifies as exempt development, if the development is carried out by a public authority, and is for a purpose (even if only one component is for that purpose) listed in Schedule 1.