Australia: Residential apartment developments in NSW: minimum apartment sizes clarified

Following a comprehensive review and stakeholder and community consultation, an amendment to the State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) and a new Apartment Design Guide were released by the NSW Minister for Planning on 19 June 2015 and will commence on 17 July 2015.

SEPP 65 was originally introduced in 2002 to improve the quality of residential flat design in Sydney. The recent amendments are a product of a review by the Department of Planning and Environment which commenced in July 2011 to ensure that SEPP 65 and the Residential Flat Design Code remain current, relevant and useful ¹.

The amendments, which will apply to DAs lodged after 19 June 2015, include a new Apartment Design Guide which will replace the current Residential Flat Design Code (RFDC). Changes have also been made to the Environmental Planning and Assessment Regulation 2000.

Changes which have been made in the amendments in connection with minimum apartment sizes in particular will be welcomed by developers, especially in light of the Land and Environment Court's (LEC) decision in Botany Bay City Council v Botany Development Pty Ltd (No 2) [2015] NSWLEC 55 (Botany Development) which generated significant concern and comment within the development industry.

In this article, we provide a brief overview of some of the key changes, particularly in relation to minimum apartment sizes.

What did the Court determine in Botany Development?

In Botany Development, Botany Bay City Council (the Council) had refused a DA for a residential flat building (the Development) in part because the minimum apartment sizes did not comply with the sizes required by the relevant DCP.

While the Development complied with the "rules of thumb" minimum apartment sizes in Part 3 of the RFDC (Rules of Thumb), it did not comply with the sizes in the "table" on page 69 of the RFDC (Table).

At first instance, the Commissioner granted development consent and found that where inconsistency arose, the minimum apartment sizes referred to in the Rules of Thumb prevailed over the minimum apartment sizes in the DCP on the basis of clause 30A(1)(b) of SEPP 65, which provides that:

"A consent authority must not refuse consent to a development application for the carrying out of residential flat development... if the proposed area for each apartment is equal to, or greater than, the recommended internal area and external area for the relevant apartment type set out in Part 3 of the Residential Flat Design Code."

The LEC upheld the Council's appeal and found that the appropriate standards upon which a consent authority cannot refuse a DA under SEPP 65 are those in the Table and not the Rules of Thumb. Therefore, the result of the decision was that developers could not seek to rely on the minimum sizes set out in the Rules of Thumb for the purposes of clause 30A(1)(b) of SEPP 65.

As outlined below however, the Apartment Design Guide has clarified the position in relation to minimum apartment sizes.

What are the minimum internal areas under the Amended SEPP 65?

On 19 June 2015 the Planning Minister released the Apartment Design Guide (to replace the RFDC) and the State Environmental Planning Policy No 65—Design Quality of Residential Flat Development (Amendment No 3), which is to commence on 17 July 2015.

New clause 30(1)(b) of the SEPP 65, as amended (Amended SEPP 65), specifies that if the internal area for each apartment will be equal to, or greater than, the recommended minimum internal area for the relevant apartment in Part 4D of the Apartment Design Guide, a consent authority cannot refuse a DA on the basis of apartment size.

The Apartment Design Guide specifies the following minimum internal areas and are similar to the Rules of Thumbs sizes in the RFDC:

Of note, these minimum areas are increased by 5m² for each additional bathroom, and 12 m² for each additional bedroom above three.

Which minimum apartment size will apply to my DA?

New clause 31 of the Amended SEPP 65 provides that if a DA or a section 96 application was made before the notification of the Amended SEPP 65 on the NSW legislation website (that is, prior to 19 June 2015), and the application has not been finally determined, the application must be determined as if the changes had not been made.

Any DAs lodged after 19 June 2015, but before the commencement of the Amended SEPP 65 are to be determined in accordance with the Amended SEPP 65.

This means that DAs lodged prior to 19 June 2015 that have not yet determined will need to comply with the RFDC. Given the decision in Botany Developments, this is likely to mean that the apartment sizes will need to comply with the Table and not the Rules of Thumb under the RFDC, particularly where developers are seeking to rely on the existing clause 31A(1)(b) of SEPP 65 for any DAs lodged prior to 19 June 2015.

What other changes have been introduced in the Amended SEPP 65?

Other changes that have been introduced by the Amended SEPP 65 and which will be relevant when proposing residential apartment developments include:

• Clarification around the types of buildings to which SEPP 65 applies, which includes not only residential flat buildings, but also shop top housing or a mixed use development with a residential component.
• Provisions of DCPs will have no effect where they are inconsistent with the Apartment Design Guide in respect of visual privacy, solar and daylight access, common circulation and spaces, ceiling heights, private open space and balconies, natural ventilation and storage as well as apartment size and layout (clause 6A).
• Part 4 of SEPP 65 has been replaced to include updated provisions for design review panels. Of note, new clause 30 specifies standards that cannot be used to refuse consent. Car parking has been added to the previous standards, in addition to minimum apartment areas and ceiling heights provided that the DA meets the relevant requirements of the Apartment Design Guide.
• Consent authorities cannot grant consent if DAs do not demonstrate that adequate regard has been given to design quality principles and relevant objectives of the Apartment Design Guide [2]. This may mean that more detailed DA documentation will be required in order to satisfy these requirements and demonstrate compliance with the Amended SEPP 65.
• Design verification statements have been carried over into the Amended SEPP 65. These are statements prepared by a registered architect and must be submitted as part of the DA. The statements must provide an explanation of how the design quality principles are achieved as well as the objectives of Parts 3 and 4 of the Apartment Design Guide. Once again, this may require more thorough design verification statements, adding to the cost of preparing DA documentation.
• The Amended SEPP 65 updates the design quality principles which are applied both to the design of new apartments and the way they are assessed by consent authorities, which include context and neighbourhood character, built form and scale, density, sustainability, landscape, amenity, safety, housing diversity and social interaction and aesthetics.

Amendments to the Environmental Planning and Assessment Regulation 2000 have also been made to give effect to the changes made to the Amended SEPP 65 including, for example:

• Councils must also take into account the matters specified in the Apartment Design Guide when approving a draft DCP, in addition to comments made by the design review panel.
• For section 96 applications, if it is not possible for the original qualified designer who verified the approved development to verify the modification, the consent authority must refer the application to the relevant design review panel.

Footnotes

¹ SEPP 65 & Residential Flat Design Code Review, Department of Planning and Infrastructure, November 2011.
²State Environmental Planning Policy No. 65 – Design Quality of Residential Flat Development (Amendment No 3), cl 30(2).

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