State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development (SEPP 65) was introduced in 2002 with the aim of improving the design quality of residential apartment developments in New South Wales (NSW).

To further improve apartment design and affordability, the NSW Government recently performed a comprehensive review of SEPP 65 including extensive community and stakeholder consultation. 

This review has resulted in changes to SEPP 65 and an overhaul of the ‘Residential Flat Design Code’, which is now replaced by the ‘Apartment Design Guide’.  These changes were announced on Friday 19 June 2015 by Planning Minister Rob Stokes and will take effect on Friday 17 July 2015.

It is expected that these changes will improve the design requirements and statutory approval process for residential apartment developments in NSW.

The changes will be implemented through State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development (Amendment No 3) (SEPP 65 Amendment No 3) and Environmental Planning and Assessment Amendment (Residential Apartment Development) Regulation 2015 (EP&A Regulation Amendment 2015).

The Apartment Design Guide also clarifies the minimum internal areas of apartments sizes, which were recently called into question by the Land and Environment Court case Botany Bay City Council v Botany Development Pty Ltd (No 2) [2015] NSWLEC 55.

Application of SEPP 65

The updated SEPP 65 will apply to residential apartment buildings, shop top housing, and mixed use developments with a residential accommodation component, which satisfy the following criteria:

  • it consists of the:
    • erection of a new building,
    • substantial redevelopment or refurbishment of an existing building, or
    • conversion of an existing building
  • the building is at least three storeys, and
  • the building contains at least four dwellings.

Key changes to SEPP 65

The SEPP 65 Amendment No 3 introduces a number of key changes to SEPP 65, including:

  • new policy aims have been introduced to provide a variety of dwelling types, to support housing affordability, and facilitate timely and efficient development assessment processes
  • SEPP 65 now applies to shop top housing and mixed use developments with a residential component
  • SEPP 65 now confirms that residential apartments need to comply with BASIX
  • the Apartment Design Guide applies to the following matters instead of provisions in a development control plan (DCP):
    • visual privacy
    • solar and daylight access
    • common circulation and spaces
    • apartment size and layout
    • ceiling heights
    • private open space and balconies
    • natural ventilation
    • storage
  • if the relevant design criteria in the Apartment Design Guide have been satisfied then‘car parking’  is no longer a standard that can be used as a reason to refuse a development application or modification application (i.e. in addition to ‘minimum ceiling height’ and ‘minimum apartment size’)
  • the ‘design quality principles’ have been rationalised and updated.  The new nine principles are as follows:
    • context and neighbourhood character
    • built form and scale
    • density
    • sustainability
    • landscape
    • amenity
    • safety
    • housing diversity and social interaction
    • aesthetics
  • various aspects of the Design Review Panels have been changed such as their constitution (new requirements for qualifications; number and mix of panel members; new two year minimum term; introduction of a chairperson) and they are now required to take into account not just the design quality principles but also theApartment Design Guide, and
  • consent authorities must give ‘adequate regard’ to the Apartment Design Guidewhen determining development applications or development consent modification applications.

Key changes to the EP&A Regulation

The EP&A Regulation Amendment 2015 introduces a number of key changes to theEnvironmental Planning and Assessment Regulation 2000 (NSW), including:

  • amending the requirements for approving a DCP if the DCP contains provisions which apply to residential apartment development, to ensure that the Apartment Design Guide is considered (see above)
  • amending the requirements for making a development application and modification application in respect of residential apartment development.  In addition to considering SEPP 65, the statement by the qualified designer must also demonstrate how the objectives of the Apartment Design Guide have been achieved
  • amending the requirements for modification applications in circumstances where the qualified designer verifying the application did not design the original proposal.  In these cases, the application must be referred to a relevant Design Review Panel for advice, and
  • amending the maximum fee that councils can charge for applications that are referred to a Design Review Panel. The new maximum fee is $3,000, increased from $760.

The new Apartment Design Guide

The new Apartment Design Guide replaces the Residential Flat Design Code and is given effect by SEPP 65.  The Apartment Design Guide provides details on how residential apartment development can meet SEPP 65’s design quality principles through good design and planning practice.

A development application or modification application relating to residential apartment development must be accompanied by a statement from a qualified designer that explains and verifies how the development achieves the design quality principles and the objectives in Parts 3 and 4 of the Apartment Design Guide.

A consent authority when determining such applications must take into consideration theApartment Design Guide and the design quality principles.  If ‘adequate regard’ is not given then development consent must not be granted.

The Apartment Design Guide requires that apartments have the following minimum internal areas:

Click here to view table.

The Apartment Design Guide is available at http://www.planning.nsw.gov.au/apartmentdesignguide.

Transitional arrangements

Development applications or modification applications lodged before 19 June 2015 must be determined under the existing SEPP 65 (i.e. not the amended version) and the old ‘Residential Flat Design Code’.  This is the position regardless of whether the application is determined before or after 17 July 2015.

Any development applications or modification applications lodged after 19 June 2015 must be determined under the amended SEPP 65 and the new Apartment Design Guide.  This is despite the fact that the amended SEPP 65 and the new Apartment Design Guide do not take effect until 17 July 2015.