Exempt development in NSW: decks, sheds, carports and fences without approval

In NSW, small structures such as decks, pergolas, garden sheds, carports and fences can be built without council or certifier approval if they meet every exempt development standard in State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, known as the Codes SEPP. The standards are specific. A rear deck must be no more than 1 metre above existing ground, no more than 25 square metres and at least 900 millimetres from the boundary in most residential zones. A side or rear boundary fence must be no higher than 1.8 metres. Miss one standard, or build on a heritage item or in the wrong part of a heritage conservation area, and the structure needs complying development or a DA. Built without that approval, it becomes unauthorised work that can surface when you sell.

Who this is for: home owners in Sydney, the Central Coast and regional NSW planning a deck, pergola, shed, carport or fence, who want to know whether they can build it without approval and what to check before they start.

What makes something exempt development in NSW?

The NSW Planning Portal explains that exempt development is minor, low-impact work that does not need planning or construction approval, provided it meets all of the development standards in the Codes SEPP. On top of the specific standards for each structure, three general requirements always apply: the work must be structurally adequate, it must be installed according to manufacturer’s specifications, and it must comply with the Building Code of Australia. Clause 1.16 of the Codes SEPP adds the general limits, including that exempt development cannot be carried out on land with an item on the State Heritage Register or subject to an interim heritage order, or in a wilderness area or critical habitat.

Nothing is lodged, and no certificate is issued. That convenience is also the risk: there is no approval document to prove compliance later. Keep the plans, the product specifications and a few photographs with a tape measure in shot.

How big can a deck or pergola be without approval?

The Planning Portal summarises the standards for balconies, decks, patios, pergolas, terraces and verandahs, set out in Part 2, Division 1, Subdivision 6 of the Codes SEPP:

The floor height limit is where most decks fail. On a sloping block, a deck that is 600 millimetres off the ground at the house can be 1.5 metres off the ground at its outer edge. The 1 metre limit is measured from existing ground level, so the highest point governs. Raised decks are also where privacy complaints start, which is why the standard is tight.

What are the rules for garden sheds, cabanas and carports?

The NSW Department of Planning fact sheet on cabanas, cubby houses, ferneries, garden sheds, gazebos and greenhouses explains that clauses 2.17 and 2.18 of the Codes SEPP set the standards. The key point in that fact sheet is about use: these structures are Class 10a non-habitable buildings, and the exempt standards do not permit them to be used as extra living space. A “shed” fitted out as a home office, studio or rumpus room needs approval, potentially as complying development. Council guidance commonly summarises the size and siting standards as a maximum floor area of 20 square metres in residential zones (50 square metres in rural and R5 zones), a maximum height of 3 metres and a setback of 900 millimetres from boundaries in most zones. Confirm the current figures in clause 2.18 before you buy a kit.

For carports, the Planning Portal notes they must be at least 1 metre behind the building line of any road frontage, that a lot with one house can have one exempt carport (two where there is also a secondary dwelling), and that on bushfire prone land a carport within 5 metres of the house must be non-combustible. On a heritage item a carport cannot be exempt, and in a heritage conservation area it must be in the rear yard.

How high can a fence be without approval?

For residential zones (R1, R2, R3, R4 and RU5), the Planning Portal’s summary of the exempt fence standards is:

• side and rear boundary fences not higher than 1.8 metres, or 1.2 metres if masonry;
• front fences, and fences within the front setback, not higher than 1.2 metres, including the side boundaries of corner sites within that setback;
• on a secondary road boundary, at least 20% transparent above 400 millimetres, with piers no wider than 350 millimetres;
• gates that do not open outwards, and low-reflective, factory pre-coloured metal;
• no electric fencing or barbed wire in residential zones (other than R5), and non-combustible or hardwood construction on bushfire prone land.

Where a retaining wall sits under a boundary fence, the combined height counts. A 600 millimetre wall with a 1.8 metre fence on top is a 2.4 metre structure on the boundary, and it is no longer exempt. Wollondilly Shire Council’s retaining wall fact sheet illustrates the point: the combination of wall and fence must not exceed the exempt fence height.

A five-minute exempt check before you build

1. Get the section 10.7 planning certificate for the property and check the zone, heritage status and whether the land is bushfire prone or flood affected.
2. Check the property is not a heritage item and not in a heritage conservation area, or note the extra limits that apply if it is.
3. Find the Codes SEPP subdivision for the structure and list every standard: area, height, setback, location.
4. Measure on site: boundaries, existing ground levels at the highest point, distance to the house and to other structures.
5. Check easements and services. Building over a sewer main, a drainage easement or a water main raises separate approvals with the utility or council.
6. Choose products with documented compliance with the Building Code of Australia and keep the specifications.
7. If any standard is not met, stop and consider complying development or a DA.

The traps we see most often

The first is the “temporary” structure that is not. A shade sail on a steel frame, a shipping container or a large deck added in stages can all exceed the exempt limits once combined. The second is the shed that becomes a bedroom, which turns a lawful exempt building into an unlawful use. The third is building in front of the building line, where councils are most likely to receive a complaint. When a structure is found not to meet the standards, it is treated as unauthorised work, and the usual fix is a building information certificate or removal. Neither is cheaper than getting the approval first.

Definitions

Exempt development

Minor work that needs no planning or construction approval because it meets every standard in the Codes SEPP.

Complying development

Development that meets pre-set standards and can be approved by a council or registered certifier through a complying development certificate, usually within 20 days.

Codes SEPP

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, which sets the exempt and complying development standards for NSW.

Building line

The line of the existing or proposed building facing the road. Many exempt structures must sit behind it.

Class 10a building

A non-habitable building or structure under the National Construction Code, such as a shed, carport or private garage.

Where a structure will not fit the exempt standards, we advise on the quickest approval route through our DA or CDC pathway advice, and prepare a short Statement of Environmental Effects where a DA is needed. For decks, carports, studios and other additions anywhere in Sydney and NSW, request a fee proposal.