In our blog on 1 May 2015 relating to apartment sizes, and the links being debated between planning restrictions and economic inequality, we referred to the design standards for apartment living through the State Environmental Planning Policy No 65 (Design Quality of Residential Flat Development) (SEPP 65).

Since this time, the Environmental Planning and Assessment Amendment (Residential Apartment Development) Regulation 2015 has been introduced, as well as an amended SEPP 65 for residential apartments, and a new Guide on the design of NSW apartments.

The changes kick in on 17 July 2015.

Environmental Planning and Assessment Amendment (Residential Apartment Development) Regulation 2015

Apart from the change in the nomenclature (from “residential flats” to “apartments”), there are a number of substantive changes that have been implemented through this Regulation.

At the strategic level, new DCPs relating to residential apartment developments ‘must not’ be approved unless the provisions relevant to apartments have been referred to the design and review panel constituted for a particular council area, and the council has considered the panel’s comments, and the matters specified in parts 1 and 2 of the Apartment Design Guide.

In the assessment phase, development applications need to be accompanied by a statement by a qualified designer. That statement ‘must’ verify they designed or directed the design of the development, explain how the design quality principles are achieved, and how the objectives in parts 3 and 4 of the Apartment Design Guide have been achieved. The same applies in respect of modification applications for residential apartment developments. If the qualified designer is unable to verify they designed or directed the design of the development, the consent authority must refer the application to the design review panel for advice as to how the modifications impact on design quality.

At the back end, certifying authorities must not issue construction certificates unless that certifier receives the statement by the qualified designer ‘verifying’ that the plans and specifications achieve or improve the design quality of the development having regard to the design quality principles. There are some exceptions here for developments accompanied by a BASIX certificate. In addition, certifiers must not issue occupation certificates authorising the commencement of occupation or use of a development unless they receive the statement by the qualified designer ‘verifying’ that the development ‘achieves’ the design quality of the development as show in the plans and specifications in respect of which the construction certificate was issued. Again there are some exceptions where the development application needed to be accompanied by a BASIX certificate.

A fee not exceeding $3000 is also now payable for development involving an apartment which is referred to the design review panel for advice.

In short the changes entrench the pre-eminence of the Apartment Design Code in strategic planning, assessment, and the back-end review of apartment developments.

State Environmental Planning Policy No. 65 – Design Quality of Residential Flat Development (Amendment No. 3)

SEPP 65 has been amended and was published on the same day as the Regulation. New aims have been inserted into the SEPP which are important given the current debate over increasing housing supply and improving housing affordability. These aims are:

  • to contribute to the provision of a variety of dwelling types to meet population growth
  • to support housing affordability
  • to facilitate the timely and efficient assessment of applications for development.

The SEPP now applies to ‘shop top’ housing and mixed use development with a residential component. The SEPP applies the Apartment Design Guide instead of local council development control plans where DCPs contain provisions dealing with design criteria and design guidance set out in the Apartment Design Guide. This means that the Guide will control visual privacy, solar and daylight access, common circulation and spaces, apartment sizes and layout, ceiling heights, private open space and balconies, and natural ventilation and storage. In addition development applications or modification applications for apartments must not be refused where the car parking, internal area and ceiling heights are equal to or greater than the recommended provisions in the Apartment Design Guide.

The SEPP also provides new provisions dealing with the governance of design review panels, including their functions, meeting procedure, quorum, and the presiding member’s role and function.

These changes also entrench the pre-eminence of the Apartment Design Guide when it comes to apartment design. However, they also provide added rigour to the governance and operation of planning panels, which is important given the:

  • value of these developments to the NSW economy and providing housing
  • importance of design to those who live in these developments
  • aesthetic impact on the general community.

Apartment Design Guide

The final piece to the reforms relates the Apartment Design Guide which rebadges the Residential Flat Design Code. This follows the three-year review into apartment design rules by the New South Wales Government which we referred to in our earlier blog. The Apartment Design Guide aims to provide ‘greater flexibility into the design process’ to encourage more ‘innovation’. Structurally, the Guide is divided into four tenets which cascade in importance:

  • Design quality principles – these nine principles are similar to the existing principles in SEPP 65.
  • Objectives – these are qualitative and comprise 80 objectives.
  • Design criteria – these sit directly under some of the objectives and are based on metrics, deal with how an objective can be achieved, and are similar to the ‘rules of thumb’ under the previous Residential Flat Design Code.
  • Design guidance – these also sit directly under the objectives or design criteria (depending on the design issue), and provide advice on how the objectives and design criteria can be achieved.

The Guide needs to be carefully considered by consent authorities during development assessment, particularly since they must:

  • not refuse applications if the design criteria under the Guide for car parking, internal areas, and ceiling heights has been met
  • refuse applications where there has been inadequate regard had to the design quality principles.

Reform agenda

These amendments indicate the NSW government’s approach to planning reform in NSW in its second term. Reform looks set to be achieved through regulations rather than wholesale amendment or repeal of legislation, such as the Environmental Planning and Assessment Act 1979, which yielded a stalemate during the previous term of the NSW Coalition government.