Certain works under the NSW planning system do not require any type of development approval. This is called exempt development. Some examples of development that can be exempt development are decks, garden sheds, carports, fences, repairing a window or painting a house.
Clause 1.6 of the Environmental Planning and Assessment Act 1979 provides:
(1) The carrying out of exempt development does not require—(a) development consent under Part 4, or (b) environmental impact assessment under Division 5.1, or (c) State significant infrastructure approval under Division 5.2, or (d) a certificate under Part 6 (Building and subdivision certification).
(2) Exempt development is development that is declared to be exempt development by an environmental planning instrument because of its minor impact.
Most forms of exempt development and their relevant standards can be found in State Environmental Planning Policy (Exempt and Complying Development Codes) 2008. A detailed list of each item of exempt development can be found in this policy.
Like complying development, determining if an item is exempt development, is essentially a "black and white" tick box exercise. A proposed development needs to meet all of the relevant standards 100% to be exempt development, otherwise development consent is required to be obtained.
Clause 1.16 of the SEPP provides the following general requirements for exempt development. There is a separate set of additional standards of each item, eg. for a carport or shed:
(1) To be exempt development for the purposes of this Policy, the development—(a) must meet the relevant deemed-to-satisfy provisions of the Building Code of Australia, or if there are no such relevant provisions, must be structurally adequate, and (b) must not, if it relates to an existing building, cause the building to contravene the Building Code of Australia, and (b1) must not be carried out on land that is a declared area of outstanding biodiversity value under the Biodiversity Conservation Act 2016 or declared critical habitat under Part 7A of the Fisheries Management Act 1994, and (b2) must not be carried out on land that is, or is part of, a wilderness area (within the meaning of Wilderness Act 1987), and (c) must not be carried out on land that is, or on which there is, an item that is listed on the State Heritage Register under the Heritage Act 1977, or that is subject to an interim heritage order under that Act, and (d) must not be carried out on land that is described or otherwise identified on a map specified in Schedule 4.
(1A) Despite subclause (1)(c), if development meets the requirements and standards specified by this Policy and that development—(a) has been granted an exemption under section 57(2) of the Heritage Act 1977, or (b) is subject to an exemption under section 57(1A) or (3) of that Act, the development is exempt development under this Policy.
(1B) If an item listed on the State Heritage Register is not located on, or does not comprise, the whole of the relevant land, subclause (1)(c) applies only to the part of the land that is described and mapped on that register.
(1C) If an item not listed on the State Heritage Register but identified as an item of environmental heritage in an environmental planning instrument does not comprise, or is not located on, the whole of the relevant land, any restriction on carrying out development on the relevant land on which the item is located applies only to the part of the land that is described and mapped on that instrument.
(2) Development that relates to an existing building that is classified under the Building Code of Australia as class 1b or class 2–9 is exempt development for the purposes of this Policy only if—(a) the building has a current fire safety certificate or fire safety statement, or (b) no fire safety measures are currently implemented, required or proposed for the building.
(3) To be exempt development for the purposes of this Policy, the development must—(a) be installed in accordance with the manufacturer’s specifications, if applicable, and (b) not involve the removal or pruning of a tree or other vegetation that requires a permit, approval or development consent, unless the removal or pruning is carried out in accordance with the permit, approval or development consent.