Recent amendments this year to the State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP) significantly affect how councils should consider boarding house proposals on R2 Low Density zoned land.
The amendments were driven largely by feedback to the Department of Planning and Environment regarding the number of rooms in many new boarding houses.
The absence of a limit on rooms in proposals was resulting in larger builds incompatible with low-density environments.
Also raised was the incompatibility of large boarding house developments with the objectives of R2 Zones, outlined in the Land Use Table of the Standard Instrument—Principal Local Environmental Plan as:
Objectives of zone
- To provide for the housing needs of the community within a low density residential environment.
- To enable other land uses that provide facilities or services to meet the day to day needs of residents.
In response, the Department of Planning and Environment issued an Explanation of Intended Effect proposing "... to amend the boarding house provisions in the ARH SEPP so that a boarding house in the R2 zone can consist of no more than 12 boarding rooms."
In 2019, the amended Planning Policy was passed. One of its provisions stated that the Policy only applied to development applications made after its amendment. Applications made before that date (that is, 28 February 2019) should be determined under the old ARH SEPP.
But that provision is far from the last word on the matter.
Can the amendments be considered in assessing an application lodged before 28 February?
Section 4.15(1)(a)(ii) of the Environmental Planning and Assessment Act 1979 states that any proposed instrument that is or has been the subject of public consultation under the Act can, in fact, be relevant when determining any development application.
The question is how relevant? How much weight should be given to such draft instruments?
Case law provides guidance. In Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289, Spigelman CJ put forward two key considerations, one of which read in determining the weight to be attributed to a draft environmental planning instrument:
Such weight will be greater if the proposal being considered would in a substantial way undermine the objectives of the draft planning instrument.
In Blackmore Design Group Pty Ltd v North Sydney Council  NSWLEC 279, Lloyd J found that in considering the weight to be applied to an instrument that was certain and imminent:
"It is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development is consistent therewith."
So what were the Department of Planning and Environment's objectives in drafting the amended Planning Policy? The Explanation of Intended Effect lays it out:
"To facilitate the development of boarding houses in the R2 zone that are compatible with the character of residential density that is typically expected in that zone..."
It's clear. That objective, taken with the judgements above, leave no doubt that, notwithstanding the provision of the amended ARH SEPP, consent authorities may consider in the context of compatibility with character the amendment to the SEPP when determining applications made before 28 February 2019.
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