In two separate decisions the NSW Land and Environment Court has backed a local council’s challenge to the way minimum apartment sizes are applied, but blocked another local council challenge to the variation of height and floor space standards.
The bad news first - apartment sizes
In NSW, apartment development is heavily influenced by the State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65). The Residential Flat Design Code (the Code) sits under SEPP 65. Both were introduced in 2002.
When the NSW Government brought in SEPP 65, it also told local councils to come up with their own design rules and include them in their development control plans (DCPs). This led to a mass of conflicting and overlapping provisions.
In 2008 – as part of an attempt to partially unclog the system - the NSW Government introduced a new ‘clause 30A’ to SEPP 65.
This provision says that a consent authority must not refuse development consent on the grounds of ‘apartment area’ when certain minimums are met. The proposed area for each apartment must be at least ‘the recommended internal area and external area for the relevant apartment type’ set out in the Code. (Although, a consent authority can still refuse development consent if inadequate regard has been given to the general design quality principles set out in SEPP 65.)
Clause 30A has annoyed some local councils. Some councils have DCPs that lay down minimum apartment areas that exceed those in the Code. Clause 30A overrides such provisions.
Last week’s Court decision - Botany Bay City Council v Botany Development (No 2) – was about which list of apartment sizes was applied by clause 30A. This question arose because the Code (on page 69) contains two separate lists of apartment sizes.
The first is a table that forms part of the ‘better design practice guidelines’. The second is set out in the rule of thumb. Some of the apartment areas nominated in the table are larger than the apartment areas in the rule of thumb.
A common view amongst both council staff and developers has been that any apartment that met either:
- the minimums in the table; or
- the rule of thumb,
was compliant with the ‘recommended internal area’ under the Code.
However, Botany City Council challenged this view. It won. In last week’s decision, the Court said that, for a proposed development to benefit from clause 30A, it must meet the minimum apartment internal and external areas set out in the table (not the rule of thumb).
The rule of thumb identified a minimum apartment size of 50m2 for all one bedroom apartments. However, the table divides one bedroom apartments into cross-through, masionette/loft and single aspect apartments, with internal areas nominated at 50m2, 62m2 and 63.4m2 respectively.
For two bedroom apartments, the rule of thumb sets out a blanket 70m2 minimum apartment area. However, the table divides two bedroom apartments into corner, cross-through, cross-over and corner-with-study apartments, with internal areas nominated at 80m2, 89m2, 90m2 and 121m2 respectively. The table does not specify an area for the most common apartment type – a two bedroom single aspect apartment.
For three bedroom apartments, the rule of thumb sets out a 95m2 minimum apartment area. However, the separate table specifies an internal area of 124m2.
The Court decision means that a developer cannot rely on clause 30A in relation to any proposed apartment:
- whose area would be smaller than those set out in the Code’s table; or
- that does not come under one of the table’s nominated apartment types.
For the purposes of clause 30A, it does not matter whether the rule of thumb is satisfied.
This decision is alarming for developers who are trying to respond to the need for affordable apartments in high demand localities.
It means that some DCP provisions that have been thought to be irrelevant will now need to be taken into consideration. For example, until now, some might have thought that the Hills Shire Council’s 110m2 minimum internal area for two bedroom apartments might be disregarded. However, this decision means that, for some two bedroom apartment types, it must be taken into consideration.
However, four things should be noted.
Firstly, the rule of thumb cannot simply be ignored by a local council. This recent Court decision is only about the application of clause 30A of SEPP 65. This decision does not mean that a local council can get away with blindly enforcing minimum apartment sizes set out in its DCP. Such provisions are not statutory requirements. The merits of individual applications must still be considered. Development applicants can still argue that they should be allowed to provide apartments that are below the minimum sizes set out in a DCP. The rule of thumb is still a relevant consideration.
Secondly, the decision is unlikely to have any great (immediate) effect in a locality where there is no minimum apartment size set out in the DCP. It is likely that the key numerical control in such cases will be the rule of thumb.
Thirdly, in any merit assessment, it will be relevant to consider the NSW Government’s draft Apartment Design Guide. The Guide (when finalised) will replace the Residential Flat Design Code. It includes the current (lower) rule of thumb apartment sizes as an ‘acceptable solution’ for the spatial arrangement and layout of apartments (performance criterion 4N-1). The table that appears in the Code does not appear in the Guide.
Finally, this will be the first of many tricky issues to land on the plate of the state’s new Planning Minister, Rob Stokes. It is conceivable that the state government will change SEPP 65 to address the issue. However, if it does not do this, some local councils are likely to take advantage of the situation. They might amend their DCPs to include the higher minimum apartment sizes set out in the Code’s table.
The good news – flexibility supported
In a separate case (Lane Cove Council v Orca Partners Management), also handed down last week, the Land and Environment Court dismissed Lane Cove Council’s legal challenge to the validity of a development consent granted by the Sydney East Joint Regional Planning Panel (the JRPP). Gadens acted for the developer in this case.
The JRPP had granted a ‘stage 1’ development consent, contrary to the advice of council officers. The consent was for a building envelope for 245 residential apartments. The maximum floor space ratio was 1.7:1, but the approved building envelope provided for a ratio of 1.85:1. The approved envelope exceeded the 18 metre height control (by several metres).
The Council had argued that the JRPP did not have the power to approve a ‘clause 4.6’ variation to the development standards. The Court found against the Council on all points.
Among other things, the Court rejected an argument that a building that exceeds a height standard must have no additional overshadowing at all. In this case, the approved non-complying building envelope did cast some additional shadows when compared with a complying development. However, these additional shadows were ‘more than offset’ by reduced shadowing. This, together with other factors, showed that there were sufficient environmental planning grounds to justify the decision to vary the standards.