Posted on March 3, 2025 by Fayette Vermeer and Megan Hawley
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Low and Mid Rise Housing Policy Amendment to the State Environmental Planning Policy (Housing) 2021
As foreshadowed in our article on 23 February here, the State Environmental Planning Policy (Housing) Amendment (Low and Mid Rise Housing) 2025 (Amending SEPP) commenced operation on Friday 28 February 2025 to give effect to the second stage of the Low and Mid-Rise Housing Policy. It seeks to encourage the development of low and mid rise housing in areas that are well-located with regard to goods, services, and public transport.
The Amending SEPP amends the State Environmental Planning Policy (Housing) 2021 (Housing SEPP) and the State Environmental Planning Policy (Exempt and Complying Development Codes) (Codes SEPP).
In summary, the Amending SEPP:
- replaces the provisions inserted in the Housing SEPP on 1 July 2024 which made development for the purposes of dual occupancies and semi-detached dwellings permissible in Zone R2 across the State, with new and expanded provisions (see our article on those amendments here);
- makes attached dwellings and multi dwelling housing permissible with development consent in a low and mid rise housing area in Zone R2, subject to exclusions noted below; and
- makes residential flat buildings and shop top housing permissible with development consent in a low and mid rise housing area in Zone R2 and R3, subject to exclusions noted below.
Where the Amendments Apply
As noted in our earlier article, the low and mid rise housing area is the area within 800m walking distance of specified town centres, public entrances to specified railway, metro or light rail stations, or a platform of a specified light rail station (if there is no public entrance).
An indicative map has been published, but unlike the first stage of the TOD amendments to the Housing SEPP, to determine if land is within a low and mid rise housing area, the 800m walking distance from the specified landmark needs to be established and reliance cannot be placed on the indicative map. The indicative map has no legal force.
The relevant train, metro and light rail stations are noted in schedules, but the town centres are to be shown on a yet to be published map.
The low and mid rise housing area is also broken up into the ‘inner area‘ being within 4oom walking distance of the specified landmarks, and the ‘outer area’ being between 400m and 800m from those landmarks.
The development standards differ between the inner and outer areas. For example, in the ‘inner area‘ residential flat buildings must be no more than 6 storeys, and in the outer area, they must be no more than 4 storeys.
We also note that the provisions introduced by the Amending SEPP do not apply to land that is:
- bush fire prone land,
- identified as a coastal vulnerability area or coastal wetlands and littoral rainforests area,
- subject to Chapter 5 of the Housing SEPP,
- a heritage item, or on which a heritage item is located,
- land in the Bathurst Regional, City of Blue Mountains, city of Hawkesbury and Wollondilly LGAs;
- flood prone land in the Georges River Catchment and Hawkesbury-Nepean Catchment,
- in a flood planning area in a long list of local government areas,
- in an ANEF contour or ANEC contour of 20 or greater,
- within 200m of a certain pipelines,
- identified as ‘Deferred Transport Oriented Development Areas’ on the Transport Oriented Development Areas Map,
- within 900m of a public entrance to a railway, metro or light rail station, and
- identified as an ‘Accelerated TOD Precinct’ on the Accelerated Transport Oriented Development Precincts Rezoning Map.
Clearly it will not be a simple exercise to determine if any particular parcel of land has the benefit of the new provisions, or is subject to new requirements under the Amending SEPP.
Application of provisions to DAs made under LEPs
There are a number of provisions in the Amending SEPP which introduce requirements or development standards including for development which would already be permissible under a local environmental plan (LEP).
So the Amending SEPP does more than just regulate development which is made permissible by the Amending SEPP.
There is a requirement in s167 (in respect of dual occupancies and semis), s171 (in respect of attached and multi dwelling housing) and s177 (in respect of RFBs and shop top housing) for a consent authority to consider the Tree Canopy Guide for Low and Mid Rise Housing before granting consent.
This requirement applies across Zones R1, R2, R3 and R4 in the low and mid rise housing area for development involving dual occupancies, semi-detached dwellings and attached and multi dwelling housing, even though the provisions only make such development permissible in zone RE2. It applies in zones R3 and R4 for RFBs and shop top housing.
Similarly there are requirements and development standards introduced for RFBs and shop top housing in the R1 and R4 zones, when the Amending SEPP only makes those development types permissible in the R2 and R3 zones.
Some of the new standards are non discretionary development standards. If such standards are complied with, the consent authority cannot refuse consent. AS the Housing SEPP prevails over LEPs to the extent if inconsistency, this will constrain consent authorities from refusing development consent due to a breach of a standard in the LEP which is less generous than the non discretionary standard in the Amending SEPP.
This means that even where a development application for low or medium density housing is made relying on permissibility under an LEP, it will be necessary to determine if the land is within the low and mid rise housing area (which is not an easy task), and to determine whether any additional standards apply.
Subdivision
There is no express provision in the Amending SEPP making subdivision of any of the development types permissible.
However, there are provisions imposing non discretionary development standards in respect of subdivision.
For example, s169 includes non-discretionary development standards for ‘development involving subdivision for the purposes of dual occupancies‘, including that the resulting lots must have an area of at least 225m2. These standards apply in R1, R2 and R3 zones, and apply to subdivisions which are permissible under LEPs. The provisions would prevent a consent authority from refusing consent if the resulting lot was at least 225m2, but did not comply with any minimum lot size for the resulting lot in the LEP.
There is a live question regarding whether the provisions of the Amending SEPP making development for the purposes of dual occupancies, or development for the purposes of multi dwelling housing permissible are intended to make subdivision of dual occupancies and multi dwelling housing permissible in zone R2 (regardless of whether it is permissible under any applicable LEP), or whether those non discretionary standards for subdivision only apply where subdivision is otherwise permissible under an LEP. or other instrument.
Dual occupancy development under the Amending SEPP is not complying development under the Codes SEPP
As with the July 2024 provisions regarding dual occupancies, the Amending SEPP provides that dual occupancies made permissible by the Housing SEPP in zone R2 cannot be carried out as complying development under the Low Rise Housing Diversity Code under the Codes SEPP. However the explanation published by the NSW Government states that for such development, complying development will become a possible pathway in mid 2025
This does not apply to any dual occupancies that were already permitted in Zone R2 under the relevant local environmental plan.
There is nothing to disapply the Subdivision Code in the Codes SEPP.
Further Issues
The Amending SEPP is very detailed, and we can identify a number of issues and complications with its application. and the development standards contained within it. We will publish further articles regarding particular aspects of the amendments.
The Amending Act can be found here.
Please do not hesitate to contact Megan Hawley on 8235 9703, or leave a comment if you have any questions.
Hi, so has there been any clarification as to whether a dual occupancy can be subdivided even if the LEP specifically refuses this, like the Lane Cover LEP does. I want to do a dual occ and even though the subdivided land will be greater than the lot size, the LEP specifically refuses consent ot any dual occupancy being subdivided. Does this amendment over ride that LEP?
Hi Melissa,
There is a section in the article discussing subdivision. The Housing SEPP would override an LEP to the extent of any inconsistency.
Regards
Megan
I have a number of queries regarding the new legislation Megan:
1. Is there a suggestion that further new metro stations will be added to schedule 11? I note not all future stations are included.
2. When the Act refers to “subdivision” is this impliedly Torrens?
3. Given s169(2) if you already have a dual occ strata approved, would an amending DA for Torrens subdivision be permitted if under the new legislation the new minimum area is 225sqm?
Hi Olga,
We will post further articles if I become aware of a proposal to add other stations.
There are some answers to FAQ on the planning website here:
https://www.planning.nsw.gov.au/policy-and-legislation/housing/low-and-mid-rise-housing-policy/frequently-asked-questions
Please refer to s6.2 of the Act for the definition of ‘subdivision’.
Your final question is a matter for specific legal advice, which I cannot answer here.
Regards
Megan
Hi Megan,
Couple questions around CDC and the Low and Mid Rise Sepp vs the Low Rise Housing Diversity Code.
My understanding is that Dual occupancies will be allowed via CDC from July 2025 in Mosman for example where they were unlocked in stage 1. Is this correct? Which set of provisions apply?
Further, it is my understanding that Manor Houses/Terraces are immediately available via CDC in R2 zones in town centres, however they need to comply with the existing LRHDC.
If so, it appears that these requirements are more stringent compared to the newly proposed LMR controls.
Do you think they will update the LRHDC to be consistent with the LMR?
Manor house sample below:
LRHDC:
Min lot size: 600sqm
FSR: Max GFA of 400sqm
Height: 8.5m
LMR:
Min lot size: 500sqm
FSR: 0.8
Height: 9.5m
Hi Chaim,
Whilst information on the NSW Planning website suggests CDC will be a pathway for dual occupancies from mid 2025, I do not have any more detail in that respect. I also do not know if there are any plans to make the LMR provisions and the LRHDC provisions consistent. If any information becomes available we will post further articles.
Regards
Megan
Hi Megan,
Thanks for this detailed article, it is much appreciated.
I had a question regarding multi-dwelling housing (terraces).
I know clause 1.19(3B) was added to the Codes SEPP to disallow CDC for dual occupancies at this point in time. However, I don’t see any clauses added which restrict the pathway of CDC for Multi-dwelling housing (terraces).
The only clause I could think of which would block off the pathway would be Clause 1.18(1)(b) – “be permissible, with consent, under an environmental planning instrument applying to the land on which the development is carried out”
Do the non-discretionary development standards-multi dwelling housing (Clause 172 of SEPP 2021) act as an EPI which would override Clause 1.18(1)(b) ?
Thank you.
Hi Daniel,
Your question is a matter on which specific legal advice would be required. I cannot answer it here.
Regards
Megan
Hi Megan
With respect to low and mid rise housing inner area and outer area definition, is there any clarity on how a site (either an existing lot or an amalgamation of multiple existing lots) would be classified in a scenario where the 400m/800m walking distance threshold bisects a proposed development site? This appears to have been left ambiguous. If undefined, who would likely be responsible for making this determination?
Regards, Ian
Hi Ian,
There is a definition of ‘walking distance’ in the Housing SEPP which is as follows:
“walking distance means the shortest distance between 2 points measured along a route that may be safely walked by a pedestrian using, as far as reasonably practicable, public footpaths and pedestrian crossings”.
This would appear to address your question.
Regards
Megan