It is always best to assume you need some form of approval until you can prove that you don't.
Start by confirming what zone your property is. You can find this by using the NSW Planning Portal's Spatial Viewer.
The difference between dual occupancy and secondary dwelling
A 'secondary dwelling' (also known as a 'granny flat') is defined in the Shoalhaven Local Environmental Plan 2014 - Dictionary as follows:
"Secondary dwelling means a self-contained dwelling that—
(a) is established in conjunction with another dwelling (the principal dwelling), and
(b) is on the same lot of land as the principal dwelling, and
(c) is located within, or is attached to, or is separate from, the principal dwelling.
Generally, secondary dwellings are used by the same household as the principal dwelling. Building an additional dwelling on a lot that will be separately serviced, leased and/or used by another household is considered a 'dual occupancy' and not a secondary dwelling.
The NSW Government has more information on secondary dwellings on the NSW Planning Portal.
Do I need approval?
Yes. Secondary dwellings require approval which can be obtained by lodging for a 'complying development' certificate or making a 'Development Application' (DA) to Council.
Do I qualify for a complying development certificate?
A complying development certificate can be issued by council or a private certifier without the need for a full development application, providing the application meets very specific criteria.
Complying development cannot be undertaken on all land. To determine if your property meets the land-based requirements you can apply to Council for a Section 10.7 Planning Certificate.
Complying development rules are set out by the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (referred to as the 'Codes SEPP') in Codes SEPP pt 1 div 2 s 1.17 - What development is complying development?.
All complying development must still meet the National Construction Code (NCC) as well as the requirements for adjoining owners’ property rights, the applicable common law and other legislative requirements for approvals, licenses, permits and authorities.
There are general requirements listed under Codes SEPP pt 1 - General that apply to all complying development and in addition, each type of development must also meet certain 'development standards' to be complying.
A complying development certificate may be issued for a secondary dwelling or an additional existing dwelling in zones R1, R2, R3, R4 or R5 if the proposal meets all of the relevant standards as follows:
- a minimum lot size of 450m2 is required
- on land other than land in a rural zone, the total floor area of the dwelling, excluding any area used for parking, must not exceed 60m2 or 60% of the total floor area of the principal dwelling (whichever is greater)
- secondary dwellings cannot be approved for sites that already contain an existing secondary dwelling
- secondary dwellings contribute to the gross floor area of a site, therefore the construction of a secondary dwelling should not result in the gross floor area exceeding the floor space ratio shown for the land on the Floor Space Ratio Map.
Further information on complying development and controls for secondary dwellings can be found in the State Environmental Planning Policy (Housing) 2021 (referred to as the 'Housing SEPP'):
The NSW Government has more information on complying development on the NSW Planning Portal.
If the proposed development does not meet the above conditions for an exempt or complying development, you will need to seek approval by lodging a Development Application (DA).
I need a DA. What do I do?
The steps below will guide you through the process of applying for a DA.