On 19 June 2015, amendments were made to State Environmental Planning Policy No. 65 – Design Quality of Residential Flat Development (SEPP 65). Also released on that day was the Apartment Design Guide – Tools for improving the design of residential apartment development which replaces the current Residential Flat Design Code originally published in 2002.
These reforms were first proposed in September 2014 and the amendments now made differ in several important respects from the draft amendments publicly exhibited in 2014.
Key changes include new minimum apartment areas, grounds on which a consent authority must not refuse consent, clarification on the role of development control plans and the introduction of alternative design solutions.
What is SEPP 65?
SEPP 65 is the State-wide policy establishing development controls for residential apartment development. The provisions of SEPP 65 must be considered by a consent authority, including a local council, when assessing development applications for residential apartment development and modifications of those applications. SEPP 65:
- gives legal weight to the Apartment Design Guide by including it as a mandatory consideration for a consent authority under SEPP 65; and
- requires consideration of design quality by reference to 9 revised design quality principles.
Key changes to SEPP 65 and the Apartment Design Guide are discussed below.
Wider application of policy
Prior to its amendment, SEPP 65 applied only to development for the purposes of a residential flat building. This has now been expanded to apply to development for the purpose of shop top housing, and mixed use development which includes a residential component. These broader categories are now termed in SEPP 65 as "Residential Apartment Development". SEPP 65 now applies:
- to the erection of a new building, substantial redevelopment or refurbishment of an existing building or the conversion of an existing building for the purpose of Residential Apartment Development; and
- where the proposed building or existing building concerned has at least 3 storeys (not including levels below ground level or that are less than 1.2 metres above ground level) and will contain at least 4 dwellings.
The amendments also clarify that SEPP65 does not apply to boarding houses or serviced apartments.
Grounds on which a consent authority must not refuse development
SEPP 65 provides that a consent authority must not refuse a development application to carry out Residential Apartment Development on grounds that the development does not deal adequately with specific matters, where those matters are provided to a standard which is equal to or greater than the recommended minimum amount specified in the Apartment Design Guide. The relevant matters are:
- ceiling height;
- minimum internal apartment area; and
- provision of the minimum amount of car parking set out in the Apartment Design Guide (discussed further below).
Previously, the 'must not refuse' development categories did not include any component relating to car parking.
New minimum apartment sizes
Under the Apartment Design Guide the minimum internal areas of studios, one, two and three bedroom apartments are now specified. The previous, and controversial, requirements which specified minimum internal and external areas have been removed, and replaced with specification of minimum internal areas only.1
These specified minimum areas reflect the previous 'Rules of Thumb' and also include a minimum area specification for studio apartments. The relevant minimum areas are:
- Studio - 35m2;
- 1 bedroom apartment - 50m2;
- 2 bedroom apartment - 70m2;
- 3 bedroom apartment - 90m2.
Development applications which comply with these minimum size requirements cannot be refused by the consent authority on this ground.
Car parking requirements
In the draft amendments exhibited in late 2014, development in some locations close to transport nodes was proposed to be allowed without any car parking. These provisions have been removed in the final version of the Apartment Design Guide.
Instead, the Apartment Design Guide adopts the minimum car parking requirements set out in the Roads & Maritime Services Guide to Traffic Generating Development or the relevant council requirement, whichever is less, for:
- sites located within 800 metres from a railway station or light rail stop within the Sydney Metropolitan Area; and
- land zoned B3 Commercial Core, B4 Mixed Use or equivalent in a nominated regional centre, and for other sites within within 400m of such land.
Where a proposal meets the lesser of these two requirements, the development application cannot be refused by the consent authority on this ground.
Role of development control plans
To promote consistent application of standards across NSW, the Apartment Design Guide will prevail over inconsistent controls adopted by councils under development control plans (DCPs). This is broadly unchanged from the exhibited draft amendments. Specifically, DCP provisions will have no effect to the extent they establish standards on the following matters which are inconsistent with the Apartment Design Guide: The SEPP provides that "if a development control plan contains provisions that specify requirements, standards or controls in relation to a matter to which this clause applies, those provisions are of no effect." Those matters are:
- visual privacy;
- solar and daylight access;
- common circulation and spaces;
- apartment size and layout;
- ceiling heights;
- balconies and private open space;
- natural ventilation; and
This provision will apply to existing and future DCPs regardless of when they were made.
We anticipate that there will be very close scrutiny by councils and developers alike as to whether, in fact, provisions are 'inconsistent' (such that the Apartment Design Guide prevails over a DCP) or whether provisions can co-exist.
Other key features
The other key features of the Apartment Design Guide include requirements for:
- solar access - in the Sydney Metropolitan Area, Newcastle and Wollongong, the solar access requirement has been reduced. Previously, 3 hours of direct sunlight between the hours of 9am and 3pm mid-winter for 70% of apartments was required. The new provisions now require only 2 hours of sunlight in the same period; and
- balconies - all apartments are required to have primary balconies (or private open space in the case of ground floor or podium apartments) which must meet specified minimum area requirements.
Introduction of alternative design solutions
The Apartment Design Guide introduces the opportunity for developers to provide one of the specified "acceptable solutions" as an alternative to meeting the relevant performance criteria. For example, an alternative solution to the provision of balconies of a certain size is the provision of juliet balconies, operable walls, enclosed wintergardens or bay windows in areas with consistently high wind speeds at 10 storeys or above or within close proximity to noise sources such as roads and aircraft noise.
Design review panels
As proposed in the exhibited draft amendments, the scheme for Design Review Panels has been amended designed to encourage take up of panels by councils. Consent authorities may now impose an additional fee of $3,000 where a development application is to be referred to a Design Review Panel. A referral will not be required if the applicant has held a design competition.
Under transitional provisions, each Design Review Panel in existence before the commencement of the amending SEPP is abolished.
The previously exhibited draft amendments did not contain any transitional provisions. This has now been addressed.
The amendments to SEPP 65 commence four weeks after they were published on the NSW legislation website - that is, they commence on 17 July 2015. Development applications or modification applications that were:
- lodged before 19 June 2015 and not determined before the amendment commences on 17 July 2015, must be determined under the version of the SEPP in force prior to 19 June 2015; and
- lodged after 19 June 2015 and have not been determined before the amendment commences on 17 July 2015, must be determined under SEPP 65 as amended.
Norton Rose Fulbright has a market leading planning practice. For further information please contact a member of our specialist planning team.
1Our previous legal update analysed in detail the decision in Botany Bay City Council v Botany Development Pty Ltd (No 2)  NSWLEC 55 which attracted significant industry and media comment here.