In 2008 the NSW State Labor Government introduced State Environmental Planning Policy (Exempt and Complying  Development Codes) to ‘provide streamlined assessment processes for development that complies with specified development standards’.   Exempt and Complying Development Certificates are issued by the Accredited Certifier, which in most cases is a Private Certifier appointed by the owner of the proposed development.  Council can also be nominated as the Accredited Certifier.

There are a number of provisos that preclude a proposed development being considered a “Complying Development”.   Importantly for Hunters Hill, any development proposed in a Conservation Area or involving a heritage item cannot be considered as a Complying Development and must submit a Development Application to be assessed by Council.

The problem with this attempt to simplify the standards for development has been a dumbing down of the subtle requirements set in place in various local government areas in their Local Environment Plans (LEPs) and their Development Control Plans (DCPs).

In Hunters Hill, a lot of work over the years has gone into setting the controls designed to protect the existing unique character of the area.   This is particularly so in relation to the DCP where there are carefully crafted character statements and descriptions of building forms and features that are designed to ensure that new work is compatible with the existing built forms and landscapes.

There is no question that the controls in the Exempt and Complying Development Codes SEPP will diminish control over appropriate development in Local Government Areas like Hunters Hill.   A case in point is the recent development at 8 Earnshaw St. Gladesvillle.

At around the same time, the NSW Government effectively removed planning assessment powers from elected Councillors for all developments.  Depending on a number of criteria, which include the monetary value of the proposal, the number of objections lodged or whether the proposal has state significance, the proposal will be assessed by one of the following:

  • Council planning staff
  • A Local Planning Panel
  • A Joint Regional Planning Panel

Another reason given for the removal of planning powers from Councillors was that it would reduce a perceived level of corruption in the processing of development applications by them. Human beings will still be involved in the process, so whether corruption levels will be affected remains to be seen.

Of course the primary unstated reason for the changes to the planning assessment process was to make things easier and faster for developers.   Driving this is the overarching Ponzi Scheme economics subscribed to by both State and Federal Governments that requires the continuous growth of population, housing and infrastructure in its relentless quest for Jobs and Growth.

But wait, there is more.

The Dismantling of the Office of Environment and Heritage

As another blow to heritage protection in NSW is the announcement by the very recently re-elected Liberal State Government that the NSW Office of Environment and Heritage will be dismantled and its two principal functions absorbed by other departments.

As noted in the online magazine ArchitectureAU, “The environmental protection and management functions of the office will be moved to an enlarged “Planning and Industry” department, while the heritage functions of the office will be moved to the arts portfolio.  Speaking to reporters on 2 April, premier Gladys Berejiklian said, “We’ve moved heritage into the arts, because heritage and the arts have a very strong focus.”

The article goes on:  “The office has existed in its current form since 2011, first under the Department of Premier and Cabinet and then under the Department of Planning and Environment from 2014.  It is responsible for the management and preservation of the state’s natural and built heritage. It provides expert and independent advice on heritage issues through the Heritage Council of NSW.

Penny Sharpe, acting leader of NSW Labor and Shadow Minister for Environment and Heritage, took to Twitter to criticize the decision. “The premier said she would make the environment a priority,” she said. “Her actions today show that this was untrue.”

Nature Conservation Council CEO, Kate Smolski, said in a statement, “This shrinks the status of the Office of Environment and Heritage further and appears designed to reduce it to providing back-office functions enabling development.”

As noted it the Sydney Morning Herald of 2 April 2019:

One senior staffer told the Herald OEH had often provided a dissenting view to Planning, such as when new housing projects in the Sydney Basin threatened the dwindling natural reserves. Remaining koala corridors, for instance, were among the habitats at risk.  Work that had previously been conducted by inhouse OEH experts was being diverted to external consultants – a process staff worry will accelerate with the bureaucratic overhaul now under way.

Kate Smolski, was also quoted as saying, “Under a previous Coalition government, the environment was downgraded to an office and has suffered ever since due to the gutting of staff, the subordination to other departments and the junior position of the Environment Minister.”

A Case Study of the Exempt and Complying Development SEPP in Hunters Hill

A recent development at No 8 Earnshaw St Gladesville is an example of the detrimental impact of the SEPP on the character of Earnshaw St and the heritage items adjacent to the development.

Were it not for the imposition of the Complying Development SEPP this proposal would have been assessed under the controls of Hunters Hill Council’s LEP and DCP.  Council’s Conservation Advisory Panel would have viewed the proposal and its advice incorporated into Council’s assessment.

There is another anomaly with this particular development.  At first sight it would appear to be a dual occupancy on a single block of land.  However this is not the case.   There are in fact two lots at 8 Earnshaw St.   One is just over 6m wide, while the other is a little over 12m wide.  The smaller block has an area of around 230m2 and the larger block’s area is about 450m2.  Neither block complies with the LEP minimum of 700m2.  How this unusual subdivision occurred is not known.

Because the two blocks are considered separate, the proposal for the two houses could be considered under the NSW Complying Development SEPP.  Had it been a single block with a proposal for a dual occupancy, it would have been subject to a separate DA assessed by Council because the Complying Development SEPP does not apply to Dual Occupancies.

As well, Complying Development is not allowed in a Conservation Area, but it is allowable in this part of Earnshaw St because it is not listed as a Conservation Area.

However there are heritage items in close vicinity.

  • The house next door at 6 Earnshaw St is a heritage item
  • Part of the front stone wall at 6 Earnshaw St is heritage-listed
  • The house immediately behind No 8 Earnshaw at 47 Massey St is heritage-listed.

Clearly these two new houses have had a seriously detrimental impact on the streetscape of Earnshaw St and on the heritage items adjacent to them.  Similarly, they do not pass the test that any new work should be an improvement on what was demolished.

There are a number of other anomalies that would mean that these two houses would not comply with either Hunters Hill’s LEP or the DCP.  For example, the building on the larger block has a zero setback from its southern side boundary and the building on the smaller block has zero setbacks from both side boundaries.  This is contrary to the LEP control, which specifies a minimum 1.5m side boundary set back, which would have made it virtually impossible to build a separate dwelling on the smaller block.

The houses do not pass the character and heritage tests set out in the DCP to ensure new housing is in keeping with the existing character of the street.

Part 2 of the DCP has chapters relating to the following:

  • Environmental qualities and features that contribute to the identity of Hunters Hill
  • Trees and vegetation relating to the existing character of Hunters Hill
  • Heritage Conservation providing requirements in relation to these significant elements in Hunters Hill

There follows over 25 pages in the DCP relating to the maintenance of the existing character of the municipality including use of materials, building forms, streetscapes and front gardens etc etc.

It is clear that these two buildings have not been designed with any of this in mind.

The fact that this has been allowed to happen puts at risk the whole intent of what we do at the Conservation Advisory Panel and any chance that Council may have in continuing to preserve the unique character of Earnshaw Street.  It is a very depressing outcome.

The question remains – what can we do about this if we wish to retain the special character of Hunters Hill? 


the house that was demolished

character of Earnshaw St

The house that was demolished took up the whole of the 2 blocks, has a lawn to the front garden, is only single storey with a single driveway and a garage situated well behind the building line.  It has a sympathetic relationship to the heritage item next door.  Note the extent of grassy verge between the road’s kerb and the footpath.  The architectural character of Earnshaw St is typified by these houses (right).

under construction

Here is the new work under construction.  Note the completely unsympathetic architecture ranging from faux Spanish Mission to Developer Modern.  Note the totally unsympathetic use of materials, the huge double garage door facing the street (in contradiction of the guidelines in the DCP).

Note the zero side boundary setbacks of the house on the left and the zero side boundary setback of the garage in the house on the right.   Note the extent of the concrete cross-overs from the road, which have replaced most of the grass verge.  Note that the front gardens of the new places, which now have mostly concrete where previously there was grass.


view from footpath with heritage item No 6 next door


how could this pass ‘the betterment test’?


This view from the street begs the question – how could the complex pass the betterment test?

extract from LEP Heritage map


An extract from LEP Heritage Map shows that the proposal is having a negative impact on the two heritage listed items.  Note that the heritage item 1109 sits on a similar block and a half as did the original house at No 6.