On 23 September 2014, the NSW Government announced a proposal for major amendments to State Environmental Planning Policy No. 65 – Design Quality of Residential Flat Development (SEPP 65), known as draft Amendment No. 3 (Draft SEPP). These amendments are accompanied by a proposed draft Apartment Design Guide – Tools for improving the design of residential flat development which will replace the current Residential Flat Design Code (RFDC) originally published in 2002.

Both the Draft SEPP and draft Apartment Design Guide are on public exhibition until 31 October 2014.

This update examines the key changes proposed.

What is SEPP 65?

SEPP 65 is the State-wide policy establishing development controls for residential flat development. The provisions of SEPP 65 must be considered by a consent authority, including a local council, when assessing development applications for residential flat development and modifications of those applications.
Key provisions of SEPP 65 include:

  1. making the RFDC a mandatory consideration for a consent authority in determining a development application to which SEPP 65 applies;
  2. the requirement for residential flat development to be designed by a registered architect. This is maintained in the Draft SEPP; and
  3. consideration of design quality by reference to 10 design quality principles, which have been revised in the Draft SEPP.

Key changes proposed by the Draft SEPP and the draft Apartment Design Guide are discussed below.

Wider application of policy

Currently, SEPP 65 applies only to development for the purposes of a residential flat building but not to other forms of development which include residential apartments. This will be expanded under the Draft SEPP so that SEPP 65 will also apply to development for the purpose of shop top housing, and mixed use development which includes a residential component. These broader categories are termed in the Draft SEPP "Residential Flat Development". The Draft SEPP will apply:

  1. 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 Flat Development; and
  2. where the proposed building or existing building concerned has at least 3 storeys and will contain at least 4 dwellings.

New grounds on which a consent authority must not refuse development

The draft SEPP provides that a consent authority must not refuse a development application for carrying out of Residential Flat 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 draft Apartment Design Guide. The relevant matters are:

  • ceiling height;
  • apartment area; and
  • provision of car parking.

Apartment Design Guide to prevail over development control plans

To promote consistent application of standards across NSW, the draft Apartment Design Guide will prevail over inconsistent controls adopted by Councils under development control plans (DCPs). Specifically, DCP provisions will have no effect to the extent they establish standards on the following matters which are inconsistent with the draft Apartment Design Guide:

  • visual privacy;
  • solar access;
  • common circulation and spaces;
  • apartment layout;
  • ceiling heights;
  • balconies and private open space;
  • natural ventilation; and
  • storage.

The Draft SEPP proposes that this provision will apply to existing and future DCPs.

Flexibility to provide car parking

The State Government is promoting these amendments as a means of improving housing affordability. One aspect of the proposed amendments which is said to improve affordability is the change regarding the provision of car parking. Most notably, there is now no minimum requirement for the provision of parking for Residential Flat Development located in inner and middle metropolitan Sydney and which is located within 400 metres of a railway station or light rail. In these areas, development which includes car parking may still be approved, but it is likely that developers will need to justify why car parking should be provided.

The draft Apartment Design Guide states that "reduced requirements promote a reduction in car dependency and encourage walking, cycling and use of public transport". While the Consultation Brochure which is on exhibition with the draft Apartment Design Guide states that an applicant may propose more car parking to meet consumer needs, that statement is not reflected in the draft Apartment Design Guide.

For sites located more than 400 metres from a railway station or light rail stop or outside inner and middle metropolitan Sydney, the relevant requirements set out in the Roads & Maritime Services Guide to Traffic Generating Development or the relevant council requirement will apply, whichever is lesser.

Revised design for residential flat development

The other key changes proposed in the draft Apartment Design Guide include:

  • the general requirement that all apartments are to have access to a balcony with a minimum depth of 2m, and private open space;
  • new minimum size of 35 m² for studio apartments; and
  • specified criteria for managing external noise and for limiting the transfer of noise between apartments.

Introduction of alternative design solutions

The draft Apartment Design Guide also introduces the opportunity for developers to provide one of the specified "acceptable solutions" as an alternative to 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 9 storeys or above or within close proximity to noise sources such as roads and aircraft noise.

Next steps

Following consideration of public submissions, the Department of Planning and Environment expects to finalise and release the amendments in 2015.