The NSW Government has responded to one of the most vocal complaints of apartment developers – the inflexibility of SEPP 65.

The State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65) has regulated the design of most residential flat buildings since 2002.  

It was introduced by former Premier Bob Carr as a early response to the shift towards apartment living.  SEPP 65 (and its associated Residential Flat Design Code) was a major extension of the planning system into aesthetics.  It took the development application process well beyond its traditional focus on the building code, height controls and floor space ratios.

This week the NSW Government released proposed amendments to SEPP 65 and a new draft Apartment Design Guide to replace the Residential Flat Design Code. (The documents can be found here.)

The Planning Minister, Pru Goward, says that the changes ‘introduce greater flexibility into the design process’ and will encourage more innovation, clarity and consistency.

How the new rules will work

The first thing you need to know is that the rules are not fundamentally changing. Generally speaking, numeric requirements for matters such as building separation, building depth, solar access and ceiling height are (more or less) the same.

The key change is that some of the controls in the proposed Apartment Design Guide will become ‘performance’ based.  These performance-based controls each rely on a fairly general (non-numeric) performance criterion.  Each criterion is associated with nominated ‘acceptable solutions’.

Developers can choose to satisfy the performance criterion through either:

  • the nominated acceptable solutions; or  
  • an ‘alternative solution’.

The Apartment Design Guide is not prescriptive about possible alternative solutions. This means that – at least in theory - there is plenty of latitude for ‘thinking outside the square’.  This non-prescriptive approach addresses one of the biggest gripes developers, architects and town planners have about the current rules.

We can see how the performance-based approach works when we consider how apartment size is dealt with. The proposed performance criterion 4N-1 requires that:

Spatial arrangement and layout of apartments is functional, well organised and provides a high standard of amenity.

The actual minimum size of apartments is not part of the criterion itself.  Instead, minimum apartment sizes are nominated as part of the ‘acceptable solutions’.  That is, studio, one bedroom, two bedroom and three bedrooms apartments must be at least 35m2, 50m2,  70mand 95mrespectively for the ‘acceptable solutions’ to be satisfied.

However,  a developer may propose smaller apartments if it can be demonstrated that the ‘spatial arrangement’ will still provide a high standard of amenity, etc. 

The new performance based approach has not been applied across-the-board.  For example, it has not been adopted in relation to building depth or building separation.  It also does not extend to controls imposed under local environmental plans or development control plans, such as floor space ratios and height controls. 

These changes will not reduce the documentation required for development applications.  The Apartment Design Guide itself is 175 pages long and includes 83 performance criteria and 290 acceptable solutions.

Setting aside local council controls

The Department of Planning and Environment says that key elements of the Apartment Design Guide ‘will prevail over council requirements, to promote certainty and consistency’.

However, the actual proposed legal regime is more limited than this statement suggests.

Ceiling heights and apartment size

It is true that local councils will not be able to apply their own standards for ceiling heights and apartment sizes when the acceptable solutions are met.  Of course, this is already the rule under the existing provisions of SEPP 65.

Car parking

For car parking, local councils will be prevented from setting minimum requirements that exceed those set out in the RMS’ Guide to Traffic Generating Development.  However, this only applies in relation to:

  • sites between 400 metres and 800 metres distance from a railway station or light rail stop; and  
  • sites within 400 metres of a railway station or light rail stop that are outside Sydney’s inner and middle ring.

Some media coverage has implied that minimum car parking requirements will be abolished for sites within 400 metres of a railway station or light rail stop inside Sydney’s inner and middle ring. This is not proposed.

The Apartment Design Guide refrains from establishing a minimum car parking requirement for these sites.  However, the guide and the proposed changes to SEPP 65 do not stop local councils from keeping their existing car parking minimums for these areas.  Local councils may even establish new car parking minimums for these sites. The decision not to set any car parking requirements for apartments in these areas therefore effectively leaves this matter in the hands of local councils.

Additionally, the changes do not offer any explicit protection for developers who still want to provide some parking (within 400 metres of a railway station or light rail stop within Sydney’s inner and middle ring).  This means that a local council might:

  • do away with its own car parking minimums; and  
  • oppose development applications by arguing that there should be less or no car parking provided. 

The success of such a strategy will depend on a case-by-case assessment of each development’s individual merits. 

Other matters

Local councils will be able to maintain their own standards for any of the matters that are dealt with by the Apartment Design Guide

However, the standards set by local councils cannot be ‘inconsistent’ with the standards set by the Apartment Design Guide if they are for:

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

There can often be legal argument about whether an onerous standard set out in one document is ‘inconsistent’ with a standard in another document.  A more clear-cut solution would have been to simply prohibit local councils from imposing their own standards for these matters.

Furthermore, local councils will be free to impose their own standards on other topics, even if they are inconsistent with the standards imposed under the Apartment Design Guide.  Examples include apartment mix within developments, acoustic privacy, accommodation of bicycles, façade treatment, roof design, etc.  The problem of overlapping and competing standards has not been resolved.

Immediate impact on pending development applications

When assessing development applications, consent authorities are obliged to consider any relevant proposed ‘environmental planning instrument’ that is the subject of public consultation.

This means that pending and new development applications will now need to be considered in the light of the proposed changes to SEPP 65.

This may boost pending development applications that either:

  • do not comply with some aspect of the current Residential Flat Design Code; or  
  • do not satisfy an ‘inconsistent’ provision of a development control plan.

We can advise applicants who think they may be in this situation.

If you are currently preparing a development application you should be aware that no ‘savings’ provision has been proposed.  If this does not change, it means that when the government finalises the reforms (in 2015) any development applications that are pending will immediately become subject to the new rules.

Application of SEPP 65

Under the proposed changes, SEPP 65 will still generally apply to the same types of development.  That is, buildings that include three or more storeys and four or more dwellings.  As before, SEPP 65 will apply to apartments proposed within a mixed use development.

However SEPP 65 currently does not apply if the proposed dwellings are not ’self-contained’.  The government is intending to drop this limitation.