A recent decision of the NSW Land & Environment Court has held that compliance with the 'Rules of Thumb' for apartment sizes, as set out in the Residential Flat Design Code, did not protect a development application from refusal. This decision has attracted significant publicity within the industry, and in this update we examine the specific findings of the Court and their broader implications in terms of the relevance of the 'Rules of Thumb' established under the Code.

Botany Bay City Council v Botany Development Pty Ltd (No 2) [2015] NSWLEC 55 (Botany Case) was decided by Sheahan J on 9 April 2015. The decision confirms that a development application proposing apartment areas which meet the minimum internal and external apartment areas set out in the Residential Flat Design Code (RFDC) cannot be refused on the basis of those apartment areas. However, the 'Rules of Thumb' for apartment size set out in the RFDC could not be relied upon as the relevant minimum standard.

Background and statutory context

The RFDC contains detailed design provisions for residential flat development in NSW. The RFDC is afforded legal weight under State Environmental Planning Policy No. 65 (Design Quality of Residential Flat Development) (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 council, when assessing development applications for residential flat development and modifications of those applications.

Clause 30A of SEPP 65 provides that a consent authority must not refuse a development application for carrying out residential flat development where the development in question meets or exceeds certain minimum standards specified in the RFDC.

Minimum apartment area standards

In the Botany Case, the relevant standard applied to "apartment area". Clause 30A of SEPP 65 provides that if a development application includes a proposed area for each apartment that is equal to, or greater than, the recommended internal area and external area for the relevant apartment type set out the RFDC, then apartment area cannot be used as a reason for refusal of the development application.

Turning to the RFDC, the standards for minimum internal and external apartment areas are set out in a table (Table). Immediately below the Table are a number of 'Rules of Thumb' for apartments, which in relation to apartment sizes reproduce "as a guide" certain suggestions from the Affordable Housing Service. Those suggestions include minimum overall sizes for some (but not all) of the apartment types referred to in the Table, but those specified sizes do not distinguish between internal and external areas.

The issue in dispute in the Botany Case was whether the relevant minimum apartment areas to be applied for the purpose of determining whether clause 30A of the SEPP was engaged, were those listed in the Table (which referred to internal and external apartment areas) or those in the Rules of Thumb (which did not, and which in some cases allowed for smaller apartment sizes than the Table). Justice Sheahan held that the apartment areas contained in the Table were the relevant standards for the purpose of clause 30A, noting that clause 30A refers specifically to "internal and external" areas and that these were only set out in in the Table and not in the Rules of Thumb.

Analysis and broader implications

The Botany Case demonstrates that compliance with the Rules of Thumb set out in the RFDC does not necessarily mean that a development application will avoid refusal. Instead, it is necessary to test whether the relevant Rule of Thumb corresponds directly with the language used in clause 30A of SEPP 65. If, as here, the language in the Rule of Thumb does not precisely correspond with Clause 30A, the Rule of Thumb could not be relied upon.

Currently, clause 30A only sets two standards: apartment size, and ceiling height. Applying the rationale of the Botany Case:

  • for apartment sizes, the 'cannot be refused' requirement of clause 30A is only engaged where the minimum internal and external areas specified in the Table are complied with, despite what appears in the Rules of Thumb; and
  • by extrapolation, it may also be unsafe to rely on the ceiling height 'Rules of Thumb', where they do not precisely align with the language used in Clause 30A.

More broadly the Botany Case has the potential to impact upon proposed reform to SEPP 65, which is presently under review. As we stated in our October 2014 update found here, the NSW Government announced in September 2014 a proposal for major amendments to SEPP 65, including replacing the RDFC with a proposed draft Apartment Design Guide – Tools for improving the design of residential flat development.

The reforms will expand the scope of clause 30A to include car parking, and it will therefore be necessary to ensure that the car parking 'standard' intended to be adopted is expressed in language which precisely aligns with clause 30A as amended. In addition, the 'Rules of Thumb' are proposed to be replaced with 'alternative design solutions'. More broadly in light of the Botany Case, it will be necessary for the Government to carefully consider the intended role of 'alternative design solutions' and to ensure that the applicable drafting aligns with SEPP 65 to reflect that intention.

We will continue to monitor the progress of the SEPP 65 reforms, and any steps which the Government may take to respond to the Botany Case.