New SEPP (Seniors Living) Gazetted – The Cloud Is Lifted

On 28 September 2007, the long anticipated amendments to the State Environmental Planning Policy (Seniors Living) 2004 (SEPP) were gazetted. The amendments to the SEPP will commence on 12 October 2007.

The amendments were foreshadowed in May this year and are the culmination of consultation between the Department and interest groups including the Retirement Village Industry Association and gadens lawyers. Many of the amendments developed at that time reflect the language and submissions made by gadens lawyers to the Department with the industry associations during the drafting process.

Many of the changes were summarised in our update of May 2007 and readers should revisit that update for a summary of the amendments. To view this update please click here.

There have been some important amendments made to the SEPP which differ from the draft amendments which were exhibited. These are outlined below.

The important point to be made in relation to the gazettal is that it brings a closer alignment to the principles of planning and the operation of the retirement village and aged care industries and their role as structures for the delivery of care to our ageing population.

When coupled with the likely changes to the New South Wales Retirement Villages Act which are anticipated to occur later this year, the changes are likely to encourage the development of affordable housing and social infrastructure through the retirement village and aged care industries. When you consider the total value of such services provided by these industries, the potential savings to government expenditure on social and health costs become obvious.

In our view, the amendments are an innovative response to the likely problems to be faced by governments in providing the infrastructure to deal with the population change. It is likely the amendments and principles will be replicated by other states.

Some of the important changes to the SEPP

We set out below the more important aspects of the changes.

Definition of 'seniors'

The definition has been expanded. In addition to including persons aged over 55, it now includes people residing in a residential aged care facility as defined under the Aged Care Act 1997 (C'th) and people who have been assessed as being eligible to occupy housing for aged persons provided by a social housing provider.

Serviced self care housing on rural land

The moratorium announced in December 2005 that severely restricted the development of such housing has been lifted but with significant limitations.

The concept of 'serviced self care housing' is now defined to mean seniors housing that consists of self contained dwellings where the following services are available on the site: meals, cleaning, personal care and nursing care.

However, before any developers decide to rush out and use spare land for this purpose they need to know that this housing can only be provided:

• for people with a disability; or

• in combination with a residential care facility; or

• as a retirement village as defined under the Retirement Villages Act 1999 (NSW).

Another precondition to these developments is that prior to the lodgement of the development application an applicant must obtain a Site Compatibility Certificate from the Director General. The application process and the matters which the Director General must consider in relation to the granting of a Site Compatibility Certificate are set out in clause 24C of the amended SEPP. The effect of the application process is that the Director General will seek input from the councils and will give councils the opportunity to comment on the application prior to the Director General issuing a Site Compatibility Certificate.

After receiving the certificate and lodging the development application with council, an applicant will then need to follow the council's processes.

A new provision has been added which confirms, in case there were any doubt, there is no limit to the matters to which the Director General may have regard when refusing to issue a Site Compatibility Certificate (clause 78(2)).

In addition to granting a Site Compatibility Certificate, the Director General must also form the opinion that the site of the proposed development is suitable for more intensive development.

What this framework does is force applicants to be more engaged with councils in relation to these types of developments and be able to explain the value and purpose of the development and how it achieves the policy objectives.

Councils and applicants will need to be familiar with the regulatory regime, structure and policy objectives of the retirement village and aged care facilities to best present their case.

Registered clubs

Seniors living housing will be allowed on land that is being used for the purposes of an existing registered club. A registered club is defined as a club in which a certificate of registration under the Registered Clubs Act 1976 is in force.

Development on land that is used for the purposes of an existing club and development on land in a zone that is identified as "Special Uses" must also have a Site Compatibility Certificate obtained from the Director General before the development application can be lodged.

Site compatibility criteria

In relation to all developments, consent authorities must consider whether the proposed deelopment is compatible with the natural environment and the existing and approved uses of land in the vicinity of the proposed development, the services and infrastructure that are or will be available to meet the demands arising from the proposed development, and that the bulk, scale, built form and character of the proposed development is likely to have on the existing uses, approved uses and future uses of land in the vicinity of the development.

Bushfire prone land

Development on "Bush fire prone land – vegetation category 1" is no longer excluded from the policy. Development on this land must instead comply with the requirements of the Planning for Bushfire Protection document prepared by the NSW Rural Fire Service in cooperation with the Department of Planning, dated December 2006.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.