Developers should consider seeking legal advice as to how the proposed changes to SEPP 65 and the new draft Apartment Design Guide may affect any current development applications they may have for:
- residential flat buildings;
- mixed use developments comprising residential accommodation; and
- shop top housing,1
of 3 or more storeys and containing 4 or more apartments (Apartment Development).
One of the key, and welcome, proposed changes to SEPP 65 is that the provisions of a council’s development control plan relating to numerous matters including visual privacy, solar and daylight access, apartment layout and private open space will be of no effect if they impose standards that are inconsistent with the standards in the Apartment Design Guide. This codifies the position taken by Commissioner Brown of the Land and Environment Court in Botany Development Pty Limited v Council of the City of Botany Bay  NSWLEC 1073.
Another change is that a consent authority cannot refuse a development application for an Apartment Development on the grounds of:
- apartment area, if the proposed area for each apartment meets the minimum size requirements in the Apartment Design Guide; or
- car parking, if the proposed car parking meets the minimum car parking requirements in the Apartment Design Guide. (The draft Apartment Design Guide provides no minimum parking requirements for sites with 400 metres of a railway station or light rail stop in nominated inner and middle ring metropolitan Sydney areas, including Botany, Hurstville, Randwick and Ryde local government areas).
These and other proposed changes to SEPP 65 may have implications now on current development applications for Apartment Development because:
- Section 79C(1)(a)(ii) of the Environmental Planning and Assessment Act 1979 requires a consent authority to take into consideration any proposed environmental planning instrument that is or has been the subject of public consultation and that has been notified to the consent authority.
Draft Amendment No 3 and the draft Apartment Design Guide referred to in Draft Amendment No 3 are on public exhibition until 31 October 2014.
- Draft Amendment No 3, if made in the form as publicly exhibited, will apply to development applications lodged but not determined before the changes to SEPP 65 commence.
This is because unlike previous amendments to SEPP 65, and as is common in amending environmental planning instruments, Draft Amendment No 3 does not include a savings and transitional provision that continues to apply the “old” provisions to such development applications.
In light of the above, if you have any current development applications for Apartment Development you should consider seeking legal advice as to how the proposed changes may affect them.