Home based food businesses

Under the Waverley Local Environmental Plan 2012, a ‘home business’ means a business, whether or not involving the sale of items online, carried on in a dwelling, or in a building ancillary to a dwelling, by 1 or more permanent residents of the dwelling and not involving the following—

1. the employment of more than 2 persons other than the residents,
2. interference with the amenity of the neighbourhood because of the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil, traffic generation or otherwise,
3. the exposure to view, from adjacent premises or from a public place, of unsightly matter,
4. the exhibition of signage, other than a business identification sign; or
5. the retail sale of, or the exposure or offer for retail sale of, items, whether goods or materials, not produced at the dwelling or building, other than by online retailing,

but does not include bed and breakfast accommodation, home occupation (sex services) or sex services premises.

Note: See clause 5.4 of the Waverley Local Environmental Plan 2012 (Waverley LEP 2012) for controls relating to the maximum floor area permitted for a home business.

You will need to ensure that your proposed use fits the definition of a 'home business’ (as contained in the Waverley LEP 2012), and that home businesses are permissible in your land use zone.  To check the land use zone applicable to your property, a planning certificate (issued under Section 10.7 of the Environmental Planning and Assessment Act) provides formal advice on land zoning and planning controls applicable to your site. You can obtain a copy of the 10.7 Planning Certificate via the following link on Council’s Section 10.7 planning certificates webpage.

Alternatively, you can access information on the land use zoning and controls applicable to your site via this link.

All home businesses involving the preparation of food and beverages require Development Consent, either via a Development Application (DA) or a Complying Development Certificate (CDC) and are never considered ‘exempt development’ under State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the Codes SEPP).

For apartments in a residential flat building or townhouse development, please check the property’s strata by-laws. You will require strata consent when applying for a DA or a CDC application for your proposal.

Approval is also required to upgrade a kitchen or construct a new kitchen to comply with relevant standards but may in some circumstances be able to be included as part of the DA for your proposed ‘home business’.

Approval may be obtained via the following processes:

1. Complying Development

Use of a dwelling as a home business

Council or an accredited private certifier may approve a home business for food manufacturing as ‘complying development’. For this to occur the home business must meet specific standards detailed in the (the Codes SEPP).  These standards are as follows:

• the home business must not involve a change of building use (that is, not more than 10 per cent of the floor area of the dwelling (or the ancillary building));
• the home business must not comprise more than 30m2 of floor area; and
• the home business must be carried out on premises that comply with the relevant requirements of AS 4674-2004 Design, construction and fit-out of food premises.

Approval is issued in the form of a Complying Development Certificate and must be obtained prior to the dwelling being used for a home business.

Kitchen upgrade or new kitchen

Council or an accredited private certifier may approve a kitchen upgrade or construction of a new kitchen to meet the requirements of AS 4674-2004.

For this to occur, the development must meet the following standards for internal alterations detailed in the Codes SEPP:

• the development must not result in a change of building classification;
• the development must not result in any additional separate dwelling;
• the development must not result in the creation of an additional floor within the dwelling; and
• must not result in a change in the number of bedrooms in the building, unless the building is a class 1a building.

The Complying Development Certificate must be obtained prior to construction works.

2. Development Application

If the requirements under complying development as listed above cannot be satisfied, a DA must be lodged with Council.

Development applications must comply with the requirements of the Waverley LEP 2012 and the Waverley Development Control Plan 2012 (Waverley DCP 2012).  Please refer to the Waverley Development Application Guide to assist with the preparation of your DA.

For home businesses approved through a CDC, that involve the manufacture of food, the kitchen must comply with the relevant requirements of Australian Standard 4674 - 2004, Design, construction and fit-out of food premises (AS 4674-2004) and parts of the Food Standards Code as published by Food Standards Australia New Zealand including but not limited to:

• Standard 3.2.2 food safety practices and general requirements
• Standard 3.2.3 food premises and equipment
• Part 1.2 labelling and other information requirements.

For home businesses approved through a DA  that involve the manufacture of food, the kitchen must comply with the requirements of the Food Standards Code as published by Food Standards Australia New Zealand.

Please Note:  Most residential kitchens do not comply with either of these standards. This means that you may need to undertake internal alternations to your kitchen to meet the relevant standard, or a new kitchen constructed to achieve compliance.

Council or an accredited private certifier can certify that a kitchen complies with the relevant requirements of AS 4674-2004.

Council offers a fee-based fit-out compliance inspection service whereby an Environmental Health Officer can inspect a kitchen and provide a report identifying whether the kitchen complies with this standard or what is required to alter a kitchen to achieve compliance. For more information on this service, contact our Environmental Health team on (02) 9083 8109 or foodinfo@waverley.nsw.gov.au.

*Council’s fit-out compliance inspection service only checks for compliance against the requirements of AS 4674-2004  and does not include checking for compliance with relevant planning legislation.

The Food Act 2003 and the regulations under the Act may contain additional requirements in relation to premises on which food is manufactured. For example, the Food Act 2003 requires all food businesses to comply with the Food Standards Code as published by the Food Standards Australia New Zealand.

All food businesses, including home-based food manufacturers, must comply with the relevant parts of the Food Standards Code. For more information, refer to the NSW Food Authority website.

Additionally, the Food Standards Code specifies that notification must be provided to Council before a food business commences operation. This applies to food businesses that sell directly to the final customer (e.g. from the premises or from a market). Refer to the Food Business Registration Form available on Council’s website or contact Council’s Environmental Health Team on (02) 9083 8109.

When a food business does not retail food directly to the customer (i.e. sale to another party such as a café or restaurant to on-sell), notification of the business and food activity must be provided to the NSW Food Authority. The NSW Food Authority carries out an inspection program across food industries, which is generally limited to higher risk operations such as businesses that produce ready-to-eat, potentially hazardous foods. Whether a home-based food manufacturing business falls within the inspection program is determined on an individual basis by the NSW Food Authority.

Submission of a complying development application, or development application and construction certificate must be accompanied by the relevant application fee. Fee estimates relating to your proposed development can be obtained by contacting Council.

Once a home business has obtained an occupation certificate and commenced trading, it will be subject to periodic random inspections as part of Council’s ongoing Food Premises Inspection Program.  Fees are charged for Council’s Environmental Health Officers to undertake this program and conduct inspections of food premises to ensure businesses understand and meet the requirements expected of them.

Current fees and charges relating to Council’s ongoing Food Premises Inspection Program can be found in Council’s annual Pricing Policy Fees and Charges.