In the recent decision of Botany Development Pty Ltd v Council of the City of Botany Bay (No. 3) [2015] NSWLEC 1282, Acting Senior Commissioner Brown of the Land and Environment Court had to consider concerns and uncertainty as to minimum apartment sizes allowed in New South Wales. The decision followed long awaited amendments to State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development (SEPP 65), and the introduction of the Apartment Design Guide (ADG).

Background to the Appeal

In the earlier decision of Botany Development Pty Ltd v Council of the City of Botany Bay [2014] NSWLEC 1073, then Commissioner Brown made interim orders providing for consent to be granted for the demolition of all improvements and for the construction of a 3-6 storey residential development containing 158 units.

The Council appealed that decision contending that Commissioner Brown misconstrued clause 30A (1) (b) of State Environmental Planning Policy No. 65 (SEPP 65), and incorrectly determined that “unit size” was not a reason for refusing consent.

On appeal (Botany Bay City Council v Botany Development Pty Ltd (No 2) [2015] NSWLEC 55) the Court found that the “recommended internal and external areas” referred to in Clause 30A (1) (b) of SEPP 65, are those specified in the table of minimum areas in Part 3 of the Residential Flat Design Code (RFD Code), rather than those specified in the Rules of Thumb which had so often been relied on by many developers.

The Court upheld the section 56A appeal, and remitted the matter for further hearing before Commissioner Brown.

Botany Development Pty Ltd v Council of the City of Botany Bay (No. 3)

The remittal hearing before Commissioner Brown occurred on 11 June 2015. The Court in making its decision considered the controls, objectives and requirements of Council’s DCP, RFD Code Table and the Rules of Thumb. The Court also recognised the draft Apartment Design Guide (draft APG) which at the time of decision had been advertised, but not formally adopted.

In handing down his decision, Acting Senior Commissioner Brown recognised that SEPP 65 and the ADG were the current applicable planning controls, however the transitional provision at Clause 31(2) of SEPP 65 meant that the Court “had no need” to give weight to these documents in concluding that the development was acceptable. The Court stated that had the same application been submitted after coming into effect of the amended SEPP 65 and ADG, numerical requirements of the ADG in relation to unit sizes would be satisfied.

The Amendments to SEPP 65 and the introduction of the ADG

On 19 June 2015, a comprehensive review of State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development (SEPP 65) was finalised. The review resulted in a number of changes to the policy with the purpose of improving apartment design and housing affordability and supply.

As a result of the changes, the Residential Flat Design Code (RFD Code), which previously had application to all apartment DA’s, was replaced by the Apartment Design Code. The effect of this change is that:

  • The RFD Code will continue apply to development applications or modification applications lodged prior to 19 June 2015 and not determined prior to 17 July 2015 (the commencement date for the amendments); and
  • The ADG and the amended SEPP 65 will apply to development applications and modification applications lodged after 19 June 2015 and not determined prior to 17 July 2015.

Certain design criteria referred to in SEPP 65 now cannot be used as a reason to refuse a DA if the Certain design criteria referred to in SEPP 65 now cannot be used as a reason to refuse a DA if the following standards are

  • Car parking for the building is equal to or greater than the minimum specified in Part 3J of the ADG;
  • Internal area for the apartment is equal to or greater than the minimum specified in Part 4D of the ADG; and
  • Ceiling heights for the building are equal to or greater than the minimum specified in Part 4C of the ADG.

The following are a summary of key changes arising out of the new ADG:

  • Minimum of 30% communal space;
  • Minimum 50% direct sunlight to the principal usable part of the communal open space for a minimum of 2 hours between 9am and 3pm on 21 June; and
  • Minimum deep soil area is now 7% of site area.
  • Minimum dimensions for deep soil zones:
    • Site area of 650m2-1500m2: 3m
    • Site area greater than 1500m2: 6m
    • Site area greater than 1500m2 with significant existing tree cover: 6m
  • For development within 800m of railway station or light rail stop in Sydney Metropolitan area, or land zoned, and sites within 400m of land zoned, B3 commercial core, B4 mixed use or equivalent in a nominated regional centre the minimum car parking requirement for residents and visitors is set out in the Guide to Traffic Generating.
  • Living rooms and private open space of at least 70% of apartments in building should receive minimum 2 hours sunlight between 9am and 3pm at midwinter in Sydney Metropolitan, Newcastle and Wollongong local government areas.
  • 60% of residential apartments are to be naturally cross ventilated in the first nine storeys of the building.
  • Ceiling heights:
    • General – Non-habitable rooms – 2.4m
    • Two storey apartments 2.7m for main living area floor 2.4m for second floor, where its area does not exceed 50% of the apartment area
    • Attic spaces – 1.8m at edge of room with a 30 degree minimum ceiling slope
    • Mixed used areas – 3.3m for ground and first floor to promote future flexibility of use
  • Minimum apartment sizes:
    • Studio apartment- 35m2
    • 3 bedroom- 90m2
    • 4 bedroom and further additional bedrooms- increase minimum internal area by 12m2
    • Additional bathroom – increase minimum internal area by 5m2
  • Must have a window in an external wall with a total minimum glass area of not less than 10% of the floor area of the room.
  • All apartments to have balconies that meet the following requirements:
    • Studio apartments – Minimum area 4m2, minimum depth n/a
    • 1 bedroom – Minimum area 8m2, minimum depth 2m
    • 2 bedroom – Minimum area 10m2, minimum depth 2m
    • 3 bedroom – Minimum area 12m2, minimum depth 2.4m
  • For apartments at ground level, a private open space is to be provided instead of a balcony.Must have a minimum area of 15m2 and a minimum depth of 3m.
  • In addition to storage in kitchens, bathrooms and bedrooms, the following storage facility must also be provided:
    • Studio: 4m3
    • 1 bedroom: 6m3
    • 2 bedroom: 8m3
    • 3 bedroom: 10m3
  • Building separation controls now apply within the development site itself. Minimum separation distances for buildings have remained the same, however, when applying controls to buildings on adjoining sites, only half the minimum separation distances measured must be applied.