The three-year review of NSW’s apartment design rules has finally drawn to a close, with the publication of the new Apartment Design Guide and final amendments to the State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65).

The new rules commence on 17 July 2015. Development applications lodged before the announcement of the changes on 19 June 2015 will still be determined under the old unamended SEPP 65 and the existing Residential Flat Design Code.

The Apartment Design Guide (the Guide) says that it is about introducing ‘greater flexibility into the design process to encourage more innovation’.

This flexibility is reflected in the Guide’s four tiered approach.

Design quality principles

At the highest level are nine design quality principles.  These replace (and are similar to) the existing 10 design quality principles set out in SEPP 65.  These principles are very broad.

In development assessment, architects will need to ensure that these principles are ‘addressed’ by a residential apartment development (under clause 50(1AB) of the amended Environmental Planning and Assessment Regulation 2000).

Objectives

The second tier is the 80 objectives (set out in parts 3 and 4 of the Guide). 

The objectives are very general qualitative (non-numeric) goals. 

Architects will be required to explain how these objectives are ‘achieved’ in their design verification statement.  This is also something that town planners will probably also need to deal with in the course of a typical approval process.

Design criteria

Sitting underneath some of the objectives are ‘design criteria’.

The purpose of ‘design criteria’ is to provide measurable requirements for how an objective can be achieved.

‘Design criteria’ are prescriptive and are similar to the ‘rules of thumb’ under the existing Residential Flat Design Code.  The prescription of the ‘design criteria’ is moderated by the Guide’s explicit acknowledgment that it may not be possible to satisfy the design criteria

The objectives with ‘design criteria’ relate to:

  • communal open space;
  • deep soil zones;
  • building separation between sites;
  • car parking provision rates;
  • direct sunlight; 
  • natural cross-ventilation;
  • ceiling heights;
  • apartment size and layout;
  • private open space and balconies;
  • common circulation spaces; and
  • storage.  

The other objectives do not have ‘design criteria’.

Design guidance

The lowest tier is the ‘design guidance’.  This is ‘advice’ on how the objectives and (where applicable) ‘design criteria’ can be achieved.

The Guide does not hold back on its ‘design guidance’, with 278 individual items of guidance littered throughout parts 3 and 4 of the Guide.

Like the design criteria, each item of design guidance relates to one of the higher-order objectives (referred to above).

When the ‘design criteria’ for an objective is not met by a proposed development, the associated ‘design guidance’ can be used to assist in demonstrating how the proposed design response nevertheless achieves the objective.

For the objectives that lack ‘design criteria’, the ‘design guidance’ must be referred to when demonstrating how an objective is being achieved.

Overall status of the Guide

While the Guide sets up this four tier hierarchy, it is important to understand that there is no requirement for a consent authority to strictly apply the provisions of the Guide.

Instead, the (amended) SEPP 65 merely requires that, when development applications are decided, the following matters must be taken into consideration:

  • any advice from a design review panel;  
  • the design quality of the development when evaluated in accordance with the design quality principles (referred to above); and  
  • the Guide (parts 3 and 4 of the Guide being the most relevant to development assessment).  

These matters join a long list of other issues that must always be considered in development assessment, such as:

  • the suitability of the site for the development;  
  • the likely impacts of the development on the built environment; and  
  • the likely social and economic impacts.  

It is quite possible that, in some cases, there could be tensions between the provisions of the Apartment Design Guide and other matters that must be considered.  When these tensions arise, it is open to a consent authority (or the Land and Environment Court on appeal) to decide not to apply a provision of the Guide (despite any mandatory language in the Guide itself).

Having said this, there are three respects in which the Guide becomes more than just a guide. Clause 30 of the amended SEPP 65 prevents a consent authority from refusing a development application - if the relevant design criteria are met - in relation to:

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

This is based on an existing provision in SEPP 65 for apartment sizes and ceiling height.

However, the new clause 30 is weaker than the existing provision.  This is because it requires a consent authority to refuse development consent if it thinks that the development does not demonstrate that adequate regard has been given to the relevant objective, even if the design criteria has been satisfied.  In practice, it may prove difficult for consent authorities to rely on this provision (and would probably only be invoked in unusual circumstances). Consent authorities must also refuse to grant development consent if they think that inadequate regard has been given to the design quality principles.

It’s worth briefly commenting on the way that clause 30 deals with car parking (a new provision) and apartment size (an altered provision).

Car parking

Some of the changes to car parking rules flagged when the draft Apartment Design Guide was released last year have been abandoned (our earlier article on the draft guide is available here).

The Guide’s design criteria for car parking (under objective 3J-1) now sets the minimum car parking requirement for residents and visitors as the lower of either:

  • the requirement prescribed by the council; or  
  • the amount set by Roads and Maritime Services (RMS) in its Guide to Traffic Generating Developments.   

In some areas, this will reduce (but not eliminate) the requirement to provide car parking.

For example, the Hills Shire Council requirement for two residential car parking spaces to be provided for each two bedroom unit located outside of a centre is higher than the RMS’ requirement of 1.2 residential spaces for two bedroom units in medium residential flat buildings.  Clause 30 of the amended SEPP 65 effectively overrides the DCP and – for a development of that kind - the RMS minimum is the actual minimum.

Apartment size

The new apartment size design criteria effectively overturns a Land and Environment Court decision handed down in April.  That decision said that consent authorities were able to refuse development consent on the basis of apartment size, even when the minimum sizes set out in the existing rule of thumb were satisfied (our earlier article on this case is available here).

The new Guide contains only one single list of apartment sizes (avoiding the problem that arose under the Residential Flat Design Code, where there were two competing lists). 

However, the new list is not exactly the same as the existing ‘rule of thumb’ in the Residential Flat Design Code.  Namely:

  • Two-bedroom, two-bathroom apartments now have a recommended minimum internal area of 75m2 (up from the previous ‘rule of thumb’ minimum of 70m2).  
  • Three-bedroom, single bathroom apartments now have a recommended minimum internal area of 90m(down from the previous rule of thumb minimum of 95m2).    

The minimum internal area for three-bedroom, two-bathroom apartments remains the same (ie 95m2).

This will create a perverse incentive for some developers to do away with the amenity of a second bathroom from two bedroom apartments.  Other developers may feel forced to maintain bathroom numbers due to market sentiment, but reduce the number of new homes in the development (and therefore reduce the supply of housing coming onto the market).

Having said this, the Guide itself allows for the merit assessment of proposed apartments that are below the minimum size – meaning a non-compliant development can still be approved.  For this merit assessment to take place, the Guide expects that it be demonstrated that proposed apartments are well-designed with useable and functional space. 

It’s also worth noting that:

  • the new design quality principle 1 says that good design responds to context (context is defined to include economic conditions); and  
  • housing affordability is an objective of the amended SEPP 65.  

In our view, this makes it possible for applicants to argue (and provide evidence) that strict adherence to the design criteria on apartment size may have housing affordability implications in high-demand areas, due for example to demographic considerations and market demand (or lack thereof).

Sunlight and daylight access

The Guide has some (potentially) significant new provisions on sunlight and daylight access.

At present the Residential Flat Design Code’s rule of thumb envisages that at least 70 per cent of a development’s apartments should have living rooms and private open spaces that receive a minimum of three hours of direct sunlight between 9 am and 3 pm in midwinter.  In ‘dense urban areas’ this can be reduced to two hours.  The Guide re-states this rule of thumb as part of the design criteria for objective 4A-1, however the two-hour exception is extended to apply to the whole Sydney metropolitan area and the Newcastle/Wollongong local government areas. The expectation is that the two hours be between 9am and 3pm (rather than say from 8am and/or until 4pm) has not changed. There is still scope to argue in favour of utilising a different range of hours, but in those cases the consent authority may be entitled to refuse a development application on that basis.

There is a new, additional, design criterion that no more than 15 per cent of apartments in a building may be without direct sunlight between 9 am and 3 pm in midwinter.  This may complicate the approval process for developments that include a significant number of lower level units that are shaded at this time of day.

The Guide sets out design guidance (ie ‘advice’) on how objective 4A-1 and its associated design criteria (above) can be achieved.  It says that ‘to maximise the benefit of direct sunlight within living rooms and private open spaces, a minimum of 1m2 of direct sunlight, measured at 1m above floor level, is achieved for at least 15 minutes’. 

This advice raises several practical issues.  For example, if the advice is to be followed, it would require an analysis of what happens to direct sunlight within a unit.  Analysis of this kind is not routinely required under the existing Residential Flat Design Code.  Additionally, the advice seems to overlook the benefits for room amenity of direct sunlight that hits internal walls and other surfaces that are not aligned with a hypothetical surface one metre above the floor level.

Objective 4A-2 requires daylight access to be maximised when sunlight is limited.  The design guidance for this objective suggests that habitable rooms cannot rely on courtyards, skylights and high level windows (with sills of 1.5 metres or greater) as their primary light source. A ‘courtyard’ is defined to be ‘communal space at ground level or on a structure … that is open to the sky, formed by the building and enclosed on 3 or more sides’.   This design guidance has the potential to complicate the approval process for courtyard apartment developments that include habitable rooms whose only aspect is the courtyard.

Some provisions of DCPs wiped out

Requirements of a development control plan (DCP) will have no effect if they relate to certain objectives, design criteria and design guidance set out in the Guide. These are:

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

This should reduce the potential for provisions in DCPs to compete with (and overlap with) provisions in the Guide

However, local councils have still been left with the freedom to impose their own DCP provisions in relation to other aspects of development.

Other new guidance

The Guide is littered with new and revised text.  Apartment developers may find some text encouraging and other text worrying.  For example:

  • Habitable room depths are limited to a maximum of 2.5 times the ceiling height (although in open plan layouts the maximum habitable room depth is still 8 metres from the window).  
  • Living rooms or combined living/dining rooms have a minimum width of:  
    • 3.6 metres for studio and one bedroom apartments; and
    • four metres for two and three bedroom apartments.   
  • When residential buildings are to be located next to commercial buildings, the separation distances for retail, offices spaces and commercial balconies are to be measured as if they are ‘habitable rooms’.   

Apartment developers and their consultants whose development applications are (to be) lodged from 19 June 2015 will want to study the new Guide closely to see if it has implications for their proposed developments.

More paperwork

Performance objective 3A-1 requires the Guide’s site analysis checklist to be addressed. 

Additionally, the SEPP 65 design verification statements - which are now often only a few pages - will need to be more elaborate.  This is because architects – in addition to addressing the design quality principles - will be legally obliged to explain how the Guide’s 80 objectives are achieved. 

Increased DA fees

The development application fee (when there is to be a referral to a design review panel) will increase by $2,240 on 17 July 2015.