Posted on December 22, 2021 by Alex Rutherford and Sue Puckeridge 7

Exhibition of the Design and Place SEPP 2021

UPDATE: On 6 April 2022, the Minister for Planning and Minister for Homes Anthony Roberts announced that, following public exhibition, the NSW government will not be introducing the Design and Place State Environmental Planning Policy. The Minister has advised that he has asked the department to proceed with BASIX updates, however it is not yet clear whether these updates will be as proposed in the draft Design and Place State Environmental Planning Policy or otherwise. We will keep you informed of any further updates.

You can read the Ministerial Media Release on the NSW Department of Planning and Environment website here.

We previously blogged about the review of the State Environmental Planning Policies here. As part of this process, the Department of Planning, Industry & Environment (Department) is now exhibiting the draft Design and Place State Environmental Planning Policy 2021 (draft DP SEPP) and surrounding policy framework.

The draft DP SEPP is the first planning instrument to implement the Minister’s Planning Principles (published in December 2021). The draft DP SEPP aims to support the Planning Principle of design and place, which in turn is intended to promote quality design for new developments, public spaces and the environment, to create ‘healthy, sustainable, prosperous and supportive design for people, the community and Country‘.

The following documents are currently on exhibition:

• draft DP SEPP;
• draft Environmental Planning and Assessment Amendment (Design and Place) Regulation 2021 (Draft EPA (DP) Regulation);
• draft Environmental Planning and Assessment (Design Principles and Considerations) Direction 2022 under section 9.1 of the Environmental Planning and Assessment Act 1979 (draft Direction);
• draft Apartment Design Guide 2021 (draft ADG 2021);
• draft Urban Design Guide (draft UDG);
• summary of proposed changes to BASIX;
• beta BASIX sandbox tool; and
• draft Design Review Panel Manual for Local Government (draft DPRM).

The changes proposed in these documents are numerous and will result in substantial changes to both strategic planning and the assessment of development applications. This blog identifies some of the key changes.

Enhanced design requirements

The draft DP SEPP is intended to be the primary source of design principles for development on urban land, including certain State significant development and applies to the whole of NSW with certain zones excluded.

In addition to incorporating the State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development 2002 (SEPP 65) and the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP), the types of development to which the draft DP SEPP applies has been significantly expanded. Development to which the draft DP SEPP will apply includes development described as ‘urban design development’ (discussed below) and specified non-residential development. Several types of development have been excluded – although some development is only partly excluded. For example, only the BASIX provisions of the draft DP SEPP apply to class 1A, class 7 and class 10 buildings.

5 design principles are proposed, each of which is supported by 2 considerations and measures to satisfy each principle.

Unlike SEPP 65, which requires the consent authority to take the design quality principles into consideration in determining a development application, the draft DP SEPP imposes a higher threshold. The consent authority must be satisfied that a proposed development is consistent with the design principles before granting consent. Detailed requirements to be taken into account in determining consistency with design principles are set out in the draft DP SEPP.

Design Guides

The draft DP SEPP gives effect to two separate guides, the draft ADG 2021, and a new urban design guide, the draft UDG.

The draft ADG 2021 is intended to replace the current Apartment Design Guide, however it will continue to apply to the same development, generally being residential buildings of 3 or more storeys and that contain at least 4 dwellings. Development consent cannot be granted for such development unless the consent authority is satisfied that development meets the objectives of the ADG 2021. How this is achieved is set out in the draft DP SEPP.

The draft UDG sets objectives, design criteria and design guidance for the carrying out of urban design development. Urban design development is:

1. development on land outside an industrial zone with a site area greater than 1 hectare, or
2. development on land in an industrial zone with a site area greater than 1 hectare that has a capital investment of $30 million or more, or
3. development in relation to which an environmental planning instruments requires a development control plan or master plan to be prepared for the land before development consent may be granted for the development.

Development consent must not be granted to urban design development unless the consent authority is satisfied that the development meets the applicable design criteria set out in the draft UDG, or where it considers that an alternative solution achieves a neutral or more beneficial outcome than meeting the design criteria.

The application of the draft ADG 2021 and the draft UDG are not mutually exclusive. There will be development to which both guides apply.

Design verification

Presently the Environmental Planning and Assessment Regulation 2000 only requires a design verification statement for residential apartment buildings. Under the draft EPA (DP) Regulation, a design verification statement will also be required for urban design development and development involving public or common space with an area greater than 1,000 square metres. More than one verification statement may be required for the same development.

Registered architects preparing a design verification statement for a residential apartment buildings will need to respond to 36 objectives, grouped under the 5 SEPP principles. Design verification statements for urban design development and development involving public or common space of more than 1,000 square metres will need to be prepared by an urban designer and a landscape architect respectively, with reference to the objectives of the UDG.

The design verification statements must be prepared by the architect, urban designer or landscape architect who designed, or directed the design of, the development.

A design verification will also be required for the modification of consents for which the original application required a design verification statement.

Design Review Panel

Development under the draft DP SEPP is to be considered by a design review panel. Design review panels will continue to be constituted, and the members appointed, by the Minister, however they will need to exercise their functions in accordance with the draft DPRM and with regard to the design principles and design considerations specified in the DP SEPP.

Enhanced sustainability requirements and changes to BASIX

Sustainability standards applying to development to which BASIX applies are significantly strengthened. The proposed changes from the current BASIX SEPP include:

1. increased standards for energy and thermal performance,
2. a requirement for an assessment of the embodied carbon emissions of the material used to build each home, and
3. an alternative merit assessment pathway, which allows recognised professional to complete a sustainability assessment using other accredited modelling software, in lieu of a BASIX assessment.

For development other than BASIX affected development, a statement described as a ‘net zero ready’ statement must be prepared, addressing matters set out in the draft EPA (DP) Regulation, including:

• estimated annual energy consumption and emissions and
• evidence that non-renewable energy will be offset.

The Department has also indicated that it is currently rebuilding the BASIX tool to integrate it with the NSW planning portal. The beta version of the new, integrated BASIX tool is available here.

Additionally, consent to development on land to be described in a public transport accessibility map cannot be granted unless the development has a ‘green travel plan‘. Such plans must, amongst other things, demonstrate how they meet the draft DP SEPP’s design considerations for sustainable transport and walkability, and how the development will achieve targets to utilise various modes of transport within 3 years of the issue of an occupation certificate. Conditions relating to the inclusion of charging facilities for electric vehicles and green travel plans will be prescribed conditions under the draft EPA (DP) Regulation.

Information relating to sustainability will be required at each point in the development process – consent, construction certificate stage and occupation certificate stage. Certifiers are prevented from issuing occupation certificates for certain development if they are not satisfied as to specified matters. For example, they cannot issue an occupation certificate for development requiring a green travel plan if they are not satisfied that the building is capable of achieving the energy and water use standards specified in draft DP SEPP, the building incorporates measures to achieve net zero emissions by 1 January 2035, and non-renewable energy used by the building will be offset. Nor can they issue such a certificate if they are not satisfied that the building is capable of implementing the measures and meeting the mode share targets specified in the green travel plan.

Strategic Planning

The draft Direction imposes an obligation on a planning authority to ensure that a planning proposal affecting land with an area greater than 1 hectare, and within either an existing or proposed residential, commercial, mixed use or industrial zone, or any other zone in which residential development is permitted or proposed to be permitted:

1. takes into account and demonstrates consistency with the design principles and design considerations under the draft DP SEPP,
2. is consistent with the objectives of the UDG,
3. demonstrates how it responds to Country and how it has been informed by contributions from Aboriginal stakeholders of the land, where they have been provided, and
4. is referred to the relevant design review panel for advice concerning the design response.

The planning proposal must also give effect to any relevant residential density, connectivity and open space criteria and guidance under the UDG.

Provisions of development control plans dealing with specified amenity issues cannot be inconsistent with the ADG 2021.

Effect of proposed changes

Until the draft documents are finalised, the draft DP SEPP is not a mandatory matter for consideration under s 4.15(1)(a)(ii) of the EPA Act. However, the proposed reforms will introduce significant changes for both consent authorities and developers, and consideration should be given to how those changes are going to be managed.

Exhibition dates

The draft DP SEPP and supporting documents are on exhibition until 28 February 2022. To view the full suite of documents on exhibition, and to make a submission, you can access the Design and Place SEPP 2021 exhibition page on the NSW Planning Portal here.