Development application FAQs

All development applications should appropriately consider Aboriginal cultural heritage as part of the Statement of Environmental Effects. This is to ensure developments respect and conserve Aboriginal cultural heritage for current and future generations

There are requirements for investigating, assessing and reporting on Aboriginal cultural heritage. For more information, please refer to the Heritage NSW website.

Installing balconies, decks, patios, pergolas, terraces and verandahs may not require approval if the proposal meets the relevant development standards in the State Policy for exempt and complying development. This is known as exempt development.

Council cannot advise whether or not your development is classified as exempt. This is something you have to be satisfied with as the property owner.

Under the State Policy for exempt development, balconies, decks, patios, pergolas, terraces and verandahs must generally meet the following requirements.

Site requirements:

• not constructed or installed on or in a heritage item or a draft heritage item, and/or
• on land in a foreshore area.

Development requirements:

• be located behind the building line of any road frontage, and must be located from the lot boundary by at least: 
  • 5 metres (if located on Zone RU1, RU2, RU3, RU4, RU6 or R5)
  • 900 millimetres (for any other zone)
• not have an area of more than 25m²
• not cause the total floor area of all such structures on the lot to be more than:
  • for a lot larger than 300m²  — 15% of the ground floor area of the dwelling on the lot
  • for a lot 300m² or less — 25m²
• not have an enclosing wall higher than 1.4 metres
• not have a floor height of more than 1 metre above the existing ground level
• not be more than 3 metres at its highest point, above existing ground level.

Additional design and construction details can be found under Subdivision 6 of the State Policy. These developments need to comply with general and land based criteria for exempt development.

For more information, visit the NSW Planning Portal.

If your development doesn't meet the criteria for exempt development, it may be permitted with consent under most zones in Port Stephens.

Section C4 of the Port Stephens Development Control Plan sets out guidelines for this type of development.

The next step would be to lodge a development application.

Specific construction standards apply to development within land identified as being bushfire prone. If your property is considered bushfire prone land, the majority of works will require a bushfire attack level (BAL) to be obtained.

This is a means of measuring the potential exposure of a building to ember attack, radiant heat and direct flame contact.

The Rural Fire Service has a number of resources that can be used to obtain a BAL for your property including Planning for Bushfire Protection.

Installing a carport may not require approval if the proposal meets the relevant development standards in the State Policy for exempt and complying development.

Council cannot advise whether or not your development is classified as exempt. This is something you have to be satisfied with as the property owner.

Generally, a carport cannot be constructed as exempt development on land:

• in a foreshore area
• on or in a heritage item
• on or in draft heritage item.

Also:

• if on bushfire prone land, carports must be constructed of non-combustible materials if within 5 metres of a house.
• if in heritage conservation areas (or draft conservation areas), carports must be in the rear yard.
• carports must be at least 1 metre behind the building line facing any road.

Any development must comply with additional design and construction details in the Subdivision 10 of the State Policy, as well as general and land based criteria for exempt development.

In some circumstances, changing the use of a building can be done without an approval from Council. To fit in this category, the proposed change must meet the requirements set out in the State Policy for exempt and complying development.

Generally, to be classified as exempt development the change of use from a current use to the new use must:

• meet the table listed under the exempt development standards
• can’t involve building alterations
• not result in an increase in the gross floor area
• not result in a change of building classification under the Building Code of Australia.

You should refer directly to the policy to satisfy yourself that you meet all of the relevant requirements.

For more information, visit the NSW Planning Portal.

In some circumstances, changing the use of a building can be done without an approval from Council. To fit in this category, the proposed change must meet the requirements set out in the State Policy for exempt and complying development.

Generally, to be classified as exempt development the change of use from a current use to the new use must:

• meet the table listed under the exempt development standards
• can’t involve building alterations
• not result in an increase in the gross floor area
• not result in a change of building classification under the Building Code of Australia.

You should refer directly to the policy to satisfy yourself that you meet all of the relevant requirements.

For more information, visit the NSW Planning Portal.

Council may grant development consent for change of use or initial use if the proposal meets the relevant planning controls.

View the planning controls for most development types and ancillary development:

• Port Stephens Local Environmental Plan 2013
• Port Stephens Development Control Plan 2014.

To get started, view the development application process.

In some circumstances, demolition can be undertaken without an approval from Council. The proposal must meet the relevant standards set out in in the State Policy for exempt and complying development.

Generally, to be classified as exempt development, the demolition must be of a low impact minor building or structure that was originally built as exempt development. You should refer directly to the policy to satisfy yourself that you meet all of the relevant requirements.

Demolition as exempt development must be carried out in accordance with Australian Standard 2601-2001 and must also comply with the Work Health and Safety Regulation 2011.

If you do not meet the exempt provisions, you will need to lodge an application with Council. This will be through either a fast-track complying development or a development application.

A dual occupancy involves 2 detached or attached dwellings on the 1 lot of land and requires approval from Council. A dual occupancy is different from a secondary dwelling (often called a granny flat).

It is recommended that you engage a qualified consultant to help design your development.

There are specific provisions within the Port Stephens Development Control Plan for dual occupancy developments. We encourage you to discuss your proposal with your neighbours and consider their concerns to avoid any delays in the processing of your application.

Council levies development contributions for dual occupancies, which are identified within Council’s Local Infrastructure Contributions Plan.

You can easily look up the address of the development to see zoning requirements and minimum lot size on the NSW Planning Portal.

Dual occupancies are permissible in the following zones under the Port Stephens Local Environmental Plan 2013:

• RU1 Primary Production
• RU2 Rural Landscape
• RU5 Village
• R1 General Residential
• R2 Low Density Residential
• R5 Large Lot Residential
• E2 Environmental Conservation
• E3 Environmental Management
• E4 Environmental Living

Dual occupancies located in the RU1, RU2, E2, and E3 have additional design criteria under the Port Stephens Local Environmental Plan 2013:

• must appear as a single development
• use and access shared facilities such as driveway, fire breaks and essential services
• any ancillary structures are to be closely located
• must be designed to avoid adverse environmental impacts.

The minimum lot size for a dual occupancy varies depending on the zone of the land, whether the site is within a heritage conservation area (or a listed heritage item) and the type of lot.

You can easily look up the address of the development to see zoning requirements and minimum lot size on the NSW Planning Portal.

Dual occupancy (attached)

• R1 General residential — 500 square metres
• R2 Low Density Residential — 500 square metres
• R3 Medium Density Residential — 450 square metres

Dual occupancy (detached)

• R1 General residential — 600 square metres
• R2 Low Density Residential — 600 square metres
• R3 Medium Density Residential — 500 square metres

Title

Torrens Title subdivision of land is allowed within R1 General Residential, R2 Low Density Residential, R3 Medium Density Residential and B4 Mixed Use zones when:

• it is for the erection of a dual occupancy (attached, detached or semi-detached), and
• the resulting lot size is at least 200m², 250m² or 250m².

If the application does not meet the above requirements, strata subdivision of the dwellings may be applied for. Subdivision of the land may not be effected until the dual occupancy is constructed.

Dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile.

Dwelling house means a building containing only one dwelling.

If your land is in a bushfire prone area, on flood prone land or subject to other environmental constraints, it is recommended that you contact Council’s Duty Officer to obtain advice about additional requirements for lodging an application.

Complying development

Some new detached dwelling houses can be designed to meet the criteria for complying development listed in the State Policy.

If your dwelling meets all of the criteria, you will need to obtain a Complying Development Certificate prior to commencing work.

Development application

Many new dwellings houses will not meet all of the criteria for complying developments. In this case, you will need to lodge a development application with our Council.

Complete a dwelling entitlement form.

A development application for a dwelling house will need to comply with legislation and the technical requirements outlined in:

• Port Stephens Local Environmental Plan
• Port Stephens Development Control Plan — Chapter C4 outlines design, layout, siting and other requirements for dwelling houses.

You will need a BASIX certificate if you are lodging a development application for:

• a new home
• any alteration or addition to an existing home of $50,000 or more.

If you receive approval for your dwelling, you will also need to obtain a construction certificate prior to starting building works.

lause 4.2B of the Port Stephens Local Environmental Plan 2013 outlines whether a dwelling house can be erected on a rural or environmentally zoned lot.

Council can provide advice on dwelling entitlements for lots — advice is subject to fees as outlined in the Schedule of Fees and Charges (professional or technical property advice). Please contact our Customer Relations Team on 4988 0255 for more information or to make payment.

The advice from Council does not consent to the construction of a dwelling on lot — you must lodge a development application. Any future application must take into account the provisions of Port Stephens Local Environmental Plan, the Port Stephens Development Control Plan and any relevant site constraints.

In some circumstances, a fence may be erected without approval from Council. To fit in this category, the proposed change must meet the requirements set out in the State Policy for exempt and complying development.

Depending on the land use zone, there are different requirements that apply to exempt fences. If the proposal does not meet the exempt provisions, you will need to lodge a development application with Council.

A like for like replacement of a dividing or boundary fence separating lands of adjoining owners can generally occur through exempt development. You should discuss any changes to the dividing or boundary fence with adjoining land owners.

For more information on swimming pool fencing and safety, visit our Swimming pools page.

The Port Stephens Local Environmental Plan 2013 defines a home business as:

A business that is carried on in a dwelling, or in a building ancillary to a dwelling, by one or more permanent residents of the dwelling and that does not involve any of the following:

• using more than 50m² of floor area
• the employment of more than 2 persons other than those residents
• interference with the amenity of the neighborhood by reason of the emission of noise, vibration, smell, fumes, smoke, vapor, steam, soot, ash, dust, waste water, waste products, grit or oil, traffic generation or otherwise
• the exposure to view, from any adjacent premises or from any public place, of any unsightly matter
• the exhibition of any signage (other than a business identification sign)
• the sale of items (whether goods or materials), or the exposure or offer for sale of items, by retail, except for goods produced at the dwelling or building, but does not include bed and breakfast accommodation, home occupation (sex services) or sex services premises.

It depends on the type of home business you are planning to operate.

Exempt development

Under the State Policy, a house may be used for home business as exempt development, so long as the use does not involve the manufacture of food products or skin penetration procedures.

Council cannot advise whether your development is classified as exempt. This is something you have to be satisfied with as the property or business owner.

For more information about exempt development, visit the NSW Planning Portal.

Complying development

These 2 types of home businesses may be carried out as complying development (fast-track approval process):

• bed and breakfast accommodation (refer to these provisions of the State Policy for a full list of development standards)
• home business for the manufacture of food (refer to these provisions of the State Policy for a full list of development standards).

For more information about complying development, visit the NSW Planning Portal.

Development application

If your development isn't exempt or complying, generally home business is permitted with consent under most zones in Port Stephens.

The Port Stephens Development Control Plan Chapter C6 (Home Business or Home Industry) sets out the guidelines for this type of development.

The next step is to lodge a development application. Council is not required to notify or advertise for home business applications. You can also check out this guide to starting a home business from the NSW Government.

Works that result in construction or installation of land fill, flood mounds and earthworks may be completed as exempt development under the State Policy depending on the extent and the subject site.

If the works don't meet exempt standards, you will likely need approval from Council.

Any works for the purpose of creating flood refuge must be designed to meet the flood characteristics of the site and must not negatively impact or change the flood character. These proposals are subject to a development application and require consent from Council.

Fill being brought onto any site needs to be clean, quality fill material. Accepting contaminated waste onto a property is unlawful and can result in a penalty. The land owners are required to clean up any environmental pollution as a result of the fill on the site.

The NSW Environment Protection Authority (EPA) have a range of resources to help you understand the requirements relating to filling your land.

A retaining wall is a structure to support or hold back earth. A retaining wall is often found between properties where the ground is at different levels, and:

• provides structural support for the higher property
• maintains the surface of the higher property at its present level
• forms an essential part of the higher property and
• prevents the movement of land between the higher and lower properties.

All works for a retaining wall are to be structurally adequate, installed to meet manufacturers specifications and comply with the Building Code of Australia (BCA).

Generally, a retaining wall with a height of 600mm or less, either below or above the existing ground level and setback 1m from site boundaries may not require Council approval. Land use and site constraints may prevent a retaining wall from being considered exempt development on certain sites.

A self-assessment of the relevant development standards of the State Policy for exempt and complying development 2008 should be completed.

If the retaining wall is required for the support and maintenance of a dividing fence between properties, then it is considered a shared structure and both property owners usually share the cost of building, repairs or maintenance.

If the retaining wall does not support and maintain the dividing fence, the responsibility for the cost of building, repairing or maintaining a retaining wall may be determined by looking at various factors such as:

• ​the reason why building or repairing a retaining wall is necessary
• the actions of the parties involved and
• what is reasonable in the circumstances.

If the retaining wall dividing properties does not support and maintain fencing, it is the responsibility of the landowner who put the retaining wall in (or whoever now owns the land if the landowner has changed).

A secondary dwelling or granny flat is self-contained accommodation within, attached or separate to a principal dwelling.

Granny flats or secondary dwellings require approval before starting construction through complying development or a development application.

Complying development

Council or accredited certifier can certify granny flats as complying development without the need for a development application, so long as they meet standards in the State Policy for affordable rental housing.

Typically, to build a granny flat as complying development it must be:

• established in conjunction with another dwelling (the principal dwelling)
• on the same lot of land as the principal dwelling (and not an individual lot in a strata plan or community title scheme), and
• may be within, attached to, or separate from the principal dwelling.

Development application

If the development does not meet complying development standards, you can lodge a development application with Council.

Secondary dwellings are permissible under the Port Stephens Local Environmental Plan 2013 in these zones:

• R1 General Residential
• R2 Low Density Residential
• R3 Medium Density Residential
• R5 Large Lot Residential.

The total floor area (excluding parking) must not exceed whichever of the following is greater:

• 60m²
• 40% of the total floor area of the principle dwelling.

Applications must address and consider the requirements of the Local Environmental Plan and the Development Control Plan. A BASIX certificate is also required.

Council levies development contributions for secondary dwellings, which are identified within Council’s Local Infrastructure Contributions Plan.

If your land is in a bushfire prone area, on flood prone land or subject to other environmental constraints, it is recommended that you contact Council’s Duty Officer to obtain advice about additional requirements for lodging an application.

The State Policy for affordable rental housing also contains additional provisions for secondary dwellings.

Installing a garden shed, cabana, cubby house, fernery, gazebo or greenhouse may not require approval from Council if the proposal meets the relevant development standards in the State Policy for exempt and complying development. This is known as exempt development.

Council cannot advise whether or not your development is classified as exempt. This is something you have to be satisfied with as the property owner.

Under the Building Code of Australia, sheds are classed as non-habitable (10a), meaning they generally don't meet the construction standards for a dwelling (1a).

Development approval is required to convert a shed or outbuilding for use as a dwelling.

If you are considering this, we recommended you seek building advice as it may not the best or most cost-effective option. Building a new dwelling that fully complies with the Building Code of Australia, the EP&A Act and Council’s Development Control Plan may be a better alternative.

You can seek approval to install a toilet, bathroom (shower and hand basin) or laundry in a shed as part of your development application. This cannot include a kitchen as it would change the classification of the structure from a shed to a dwelling.

Retrofitting or installing facilities into an existing shed also requires development consent, even if the shed was originally built as exempt development.

Development consent may be required depending on the intended use and placement of a shipping container on the property.

Shipping containers are considered a building under the EP&A Act. Under the State Policy, they may be considered exempt if used for farm buildings and building site sheds. If used in any other capacity, the shipping container is likely to require development consent from Council.

The Port Stephens Development Control Plan includes requirements that need to be considered with applications for shipping containers:

• Chapter C2 Commercial — There are no restrictions on the number of shipping containers in a commercial use. The shipping containers are to be stacked and scaled similarly to the scale and height of adjoining buildings, be located to the rear of the site (where possible) unless the rear is subject to sensitive use and the formation of stacked shipping containers adjacent to landscape areas are to be in a tier or pyramid formation.
• Chapter C4 Dwelling House, Secondary Dwelling, Dual Occupancy or Ancillary Structures — Shipping containers are to be sited behind existing building lines and not located in front of the existing or proposed building line and are to be screened from view from adjoining property. The total number for residential accommodation development must not exceed more than 2 per lot. Shipping containers are to be placed on the ground level only and may not be stacked on top of one another.

Specific development standards must be met when constructing, installing or displaying the types of signs identified in the State Policy. If satisfied, these standards allow certain types of signage to be erected as exempt development without approval from Council.

Generally to be considered exempt development, the sign must:

• have consent in writing from the owner of the land on which the sign is located — if the sign is located over adjoining land, the consent of the owner of the adjoining land is also required
• be approved under section 138 of the Roads Act 1993 if the sign or part of the sign projects over a public road (including a footpath)
• not be carried out on or in relation to a building being used as a restricted premise
• not cover any mechanical ventilation outlets located on any building in which the business is carried out not obstruct or interfere with any traffic sign
• all signage must be securely fixed to the building in accordance with the relevant Australian Standards.

Council cannot advise whether or not your development is classified as exempt — it's up to the individual to assess their proposal against the State Policy. If you are satisfied it meets exempt provisions, you may proceed without consent from Council.

Trailer and political signs

Political and real estate signs are to meet the exempt provisions under the State Policy. These signs are to be erected on private property with the consent of the land owner, not cause any safety or amenity impacts or be of excessive size.

If you do not meet the exempt provisions under State Policy, you will need development consent from Council. Schedule 1 of the State Policy on advertising and signage outlines assessment criteria for signage.

In your development application, you should include:

• Development and Construction Certificate Application — including correct property address and owner's consent
• site plan including neighbouring property boundaries and location of the signage if appropriate
• signage plans — showing colour, size, content and elevations (if using a pylon sign)
• Statement of Environmental Effects should include an assessment against the State Policy on advertising and signage, Port Stephens Local Environmental Plan 2013 and Development Control Plan 2014 (Chapter C8).

See development applications for more information on the application process.

Subdivision of land is the process of creating new lots of land, changing the size of the existing lot or changing the location of property boundaries. This process creates a new title for each new lot that can be registered with NSW Land Registry Services. There are several types of subdivision.

Torrens title

Subdivisions involve the creation of new allotments from an existing allotment, including:

• boundary adjustments — realignment of a lot boundary
• site consolidations — amalgamation of 2 or more lots into one lot
• the subdividing of an existing lot into 2 or more lots.

Community title

The subdivision of land so that each lot has a separate title but shares a common piece of land such as a pool, BBQ area, driveway, garden and so on. The community plan for the subdivision may outline a number of development guidelines for the subdivision's design and construction.

Strata title

• Gives ownership to individual portions of a larger property and a share of common property such as gardens and driveways. Owners become members of the body corporate and may share responsibility for the whole property.
• Strata subdivision is most commonly used with dual occupancies, multiple dwelling development, apartment buildings, commercial and industrial buildings.

Stratum subdivision

• The horizontal subdivision of sections of a building into separate titles.
• For example, the subdivision of a ground floor retail or commercial area from the above residential floors.

As most subdivisions of land are carried out under Torrens Title subdivision, the below information relates to Torrens Title subdivision only.

Some minor boundary adjustments may be undertaken without approval from Council if they meet the criteria contained in State Policy.

If the proposal doesn't qualify as exempt development and is a strata subdivision, you may be able to apply for a fast-tracked complying development certificate if it meets the relevant development standards.

If you require a development application, you will need to review the planning policies which apply to your land:

• Port Stephens Local Environmental Plan
• Port Stephens Development Control Plan
• NSW Biodiversity Reforms

Unauthorised work or unlawful activities can range from minor breaches that cause little to no harm to major non-compliance that significantly harms others or the environment.

Unauthorised works can be:

• works that requires consent or approval
• work or activities not completed in accordance with the consent or approval
• work or activity occurring within an area not permitted, vegetation or tree removal, or
• contrary to relevant legislation provision unauthorised land clearing.

Once Council becomes aware of the works, there are a range of enforcement actions that may occur. These include:

• order or issue of notice to stop work, demolish, alter, repair or remove the unauthorised works or structure
• issue of fines
• commence of legal processing in court.

In the first instance, a notice is usually given that outlines action to be undertaken to address the non-compliance. Failure to achieve or meet the order will result in a fine or prosecution.

It is not possible to obtain retrospective approval for unauthorised building use. It may be possible to obtain approval for the use of a building or continue use of an activity if the use of the building or activity could have been lawfully been approved in the first instance. In such cases, Council requires a development application to be submitted to further consider the matter.