Working with the NSW planning system

Planning NSW logoEmpty space initiatives are supported by the provisions of the NSW Department of Planning's Sydney Metropolitan and Regional Strategies for their potential to contribute to the revitalisation and renewal of centres and precincts.

This section contains advice on how empty space initiatives can work with the NSW planning system. It is adapted from Arts Revitalisation Projects and the Planning System published by the NSW Department of Planning, January 2010.

You can read the information online or dowload the full report.

Any questions can be directed to the Department of Planning at innovation@planning.nsw.gov.au.

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Arts Revitalisation Projects and the Planning System.pdf565.19 KB

Types of uses for empty space projects

There are a range of cultural and arts activities that could be implemented as short-term uses in vacant shops, offices or industrial premises until these premises can be redeveloped or allocated to more long-term uses. These short-term activities include: 

Uses, definitions and zoning

Land Use Permissibility 

In order to undertake an empty spaces-style project, proposed uses must be permissible in the relevant land use zone in the relevant local council's Local Environmental Plan (LEP).  

There are several land use zones that may accommodate empty space projects, ranging from Business (including Mixed Use) to Light Industrial. 

This table identifies the types of uses likely to occur as part of the temporary reuse of empty spaces, how these are generally categorised in the relevant planning instrument and the typical zones where these are likely to be permissible.

 

Table 1: Uses, definitions and possible zone

Type of arts revitalisation use

How defined*

Typical zones where permissible

Art Gallery with Sales

Handmade Furniture Design and Sale

Handmade Fashion Design, Manufacture and Sale

Handmade Toy Design and Sale

Retail premises

Business

Mixed Use

Artist or Musician Studio with Teaching Facilities

Creative Business with Training

Business premises

Business

Mixed Use

Artist Studio

Musician Studio Web Development Graphic Design Film Editing

Art Photography Studio

Office premises

Business

Mixed Use

Art Gallery (only for display, no sale available)

Art Installation (only for display, no sale available)

Information and education facility

Business

Mixed Use

Handmade Furniture Design and Manufacture

Handmade Fashion Design and Manufacture Handmade Toy Design and Manufacture Artist Studio

Craft, Pottery and Sculpture

Light industry

Business

Light Industrial

Handmade Furniture Design, Manufacture and Sale

Handmade Fashion Design, Manufacture and Sale

Handmade Toy Design, Manufacture and Sale

Industrial retail outlet

Light Industrial

*  Indicative Only - should be determined by the predominant or primary business operation (ie. is it predominately a retail premises with some manufacture or predominantly manufacture with some retail).

Definitions are as follows: 

Business premises means a building or place at or on which: 

(a)  an occupation, profession or trade (other than an industry) is carried on for the provision of services directly to members of the public on a regular basis, or 

(b)  a service is provided directly to members of the public on a regular basis,

and may include, without limitation, premises such as banks, post offices, hairdressers, dry cleaners, travel agencies, internet access facilities, medical centres, betting agencies and the like, but does not include sex services premises. 

Office premises means a building or place used for the purpose of administrative, clerical, technical, professional or similar activities that do not include dealing with members of the public at the building or place on a direct and regular basis, except where such dealing is a minor activity (by appointment) that is ancillary to the main purpose for which the building or place is used. 

Retail premises means a building or place used for the purpose of selling items by retail, or for hiring or displaying items for the purpose of selling them by retail or hiring them out, whether the items are goods or materials (or whether also sold by wholesale). 

Information and education facility means a building or place used for providing information or education to visitors, and the exhibition or display of items, and includes an art gallery, museum, library, visitor information centre and the like. 

Light industry means an industry, not being a hazardous or offensive industry or involving use of a hazardous or offensive storage establishment, in which the processes carried on, the transportation involved or the machinery or materials used do not interfere with the amenity of the neighbourhood by reason of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil, or otherwise. 

Industrial retail outlet means a building or place that: 

(a)  is used in conjunction with an industry (including a light industry) but not in conjunction with a warehouse or distribution centre, and 

(b)  is situated on the land on which the industry is carried out, and 

(c)  is used for the display or sale (whether by retail or wholesale) of only those goods that have been manufactured on the land on which the industry is carried out. 

Planning approvals required

Under the LEP, development consent may be required to change the use or to change the interior fit out in the building so an empty space project can be undertaken. 

The dynamic nature of these projects requires that a change of use - for example from a shop to an art gallery or from a real estate agent office to a graphic design studio - can be approved quickly through the planning system and preferably not need consent.   

Temporary use of land  

In some instances, the council's LEP may include a clause that will enable the 'temporary use of land' without the need for an approval. 

These provisions generally apply where councils wish to allow a change of use for a short period of time where surrounding amenity is not affected, for example the use of vacant offices for an art gallery.  

The number of permissible days may potentially be extended for specific temporary uses, however council and the planning department must be provided with suitable justification for such a variation. 

Exempt and complying development

Under the planning system, certain low impact or routine development can be classified as exempt or complying development and not require development consent. These terms are defined as follows: 

Exempt development is development that has minimal environmental impacts which, if it complies with the relevant provisions in a planning instrument, can be carried out without the need for development consent. 

Complying development is development that, if it meets pre-determined development standards, can be quickly approved. A Complying Development Certificate (CDC) application needs to be lodged with a certifying authority (Council officer or a private certifier). These applications are to be determined within 10 days (unless both parties agree to an extension).

Under the council's LEP, uses undertaken as part of an Empty Space Project may be listed as exempt or complying development.  

In addition, under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP), these projects (in part or whole) may also fall under exempt or complying development.  

The Codes SEPP ensures that certain changes of use or internal fit outs applying to retail, business or light industry premises, can be considered as either exempt or complying development provided the current use is a lawful use or the use is permissible in the relevant land use zone under the LEP.  This information is available from the relevant local council.   

Where the change of use is exempt development, no approval is required.  Where the change of use is complying development, this will be assessed by a certifying authority (council officer or private certifier), with a Complying Development Certificate (CDC) issued in 10 days. In addition to change of use considerations and basic development exemptions, it is important to note that if a proposal is intending to sell and handle food the appropriate food safety license must be obtained.  

Heritage considerations

It is likely that some heritage buildings will be considered as potential sites for an empty spaces project.  

Heritage items may be listed on the State Heritage Register or listed in a council's LEP. Usually, works on buildings listed on the State Heritage Register cannot be complying development.   

Works affecting buildings of local heritage significance may require approval from council. If works are proposed to buildings listed on the State Register, an approval may be required from the Department of Planning's Heritage Branch.  

A number of exemptions exist, allowing for certain works to not require planning approval or, if required, for approval to be streamlined.  For example, the maintenance, cleaning or repair of a building listed on the State Heritage Register does not trigger the requirement for approval from the Department of Planning's Heritage Branch.

However, when considering change of use or replacement of signage, a statement demonstrating no adverse impact on the fabric of the building is required for the Heritage Branch to issue approval.

Similar initiatives would exist under a council's LEP so further consultation should be sought with the local council.  

Change of use

Exempt Development 

Many Empty Space initiatives may focus on the 'design arts' such as pop-up boutique retail stores, galleries and artist studios, as well as other creative businesses. It is anticipated, therefore, that the majority of proposals are likely to fall into the exempt development category. 

With respect to the examples given in Table 1 (and their equivalent categorisation), a change of use is permissible as exempt development for the following:

Business premises to another type of business premises
Example: accountant office to an artist studio with teaching facilities

Business premises to office premises
Example: real estate office to web design office

Office premises to another type of office premises
Example: accountant's office to art photography studio

Office premises to business premises
Example: IT company to artist studio with teaching facilities

One type of retail premises to another type of retail premises
Example: shoe shop to art gallery with sales

Light industry to another light industry
Example: furniture manufacture to craft, pottery and sculpture centre


Complying Development  

Some proposals may require a change of use to be assessed as complying development, such as a change from a boutique fashion store to a web development business, if it relates to a change in the class of building as determined under the Building Code of Australia (BCA)2. 

For example an office premises is defined as a class 5 building and retail premises as class 6.

This requires the submission of a CDC application to a certifying authority (council officer or a private certifier) which must be determined within 10 days.  A change of use is permissible as complying development for the following:

Retail premises to business premises
Example: clothing shop to artist studio providing art lessons

Retail premises to office premises
Example: furniture shop to web design office

Business premises to retail premises 
Example: real estate office to art gallery with sales

Office premises to retail premises
Example: call centre offices to art gallery with sales

Light industry to office premises
Example: clothing manufacture to web design office

Light industry to another light industry
Example: furniture manufacture to pottery and sculpture centre.

For more information on the BCA refer to the Australian Building Codes Board (ABCB) website.

Signage

Certain types of signage are listed under the Codes SEPP as exempt development. 

In order to ensure development consent is not required, the following development standards apply: 

Building works

In many cases, empty spaces projects will be able to be undertaken in existing vacant buildings without the need for alterations to be building. 

Consideration must first be given to ensuring the use is permissible in the zone.  Following this, it is important to ensure the premises meets current safety standards and any necessary approvals are sought.  

Where minor building alterations are required, the provisions in the council's LEP and the Codes SEPP need to be checked to determine if development consent is required.  

Building Works and Exempt Development 

The Codes SEPP specifies building works that can occur without requiring development consent.  This is particularly relevant when considering shop fit outs.   

Clause 2.20B of the Codes SEPP specifies the development standards for change of use premises as exempt development.  Examples of these development standards are as follows: 

The following are example building alterations permissible that can be undertaken as exempt development under the SEPP: 

                  - a doorway, wall, ceiling or floor lining
                  - a deteriorated frame member
                  - a bathroom or kitchen
                  - a built in fixture such as a vanity, a cupboard or a wardrobe
                  - an existing sanitary fixture, such as a grease trap or the like
                  - shelving or racking that is not higher than 2.7m 
                  - a work station or counter

Building Works and Complying Development  

The Codes SEPP specifies internal building works that can be carried out as complying development, subject to meeting the development standards satisfying clause 5.2 and 5.3 of the SEPP. 

Examples of these development standards include:

External building alterations considered as complying development are listed in clauses 5.7 to 5.12 of the SEPP. 

These include:

If development is not Exempt or Complying

If development is not exempt or complying under the council LEP or the Codes SEPP, a Development Application (DA) must be lodged to the relevant council for consideration.