Posted on October 1, 2014 by Megan Hawley

Proposed Amendments to SEPP 65 – Well Designed and Affordable Apartments?

The NSW Department of Planning and Environment (Department) has exhibited a draft amendment to State Environmental Planning Policy No.65 – Design Quality of Residential Flat Development (SEPP 65), which is aimed at improving both the design and affordability of apartments.

Some of the key amendments proposed in the draft amendment are as follows:

• The aims of SEPP 65 are proposed to be amended to include the provision of affordable housing, provision of a variety of dwelling types, and timely and efficient assessment of applications for residential flat developments.
• The operation of  SEPP 65 is proposed to be extended to not only cover residential flat buildings, but also  shop top housing and mixed use developments that include a residential component, provided the development is 3 or more storeys and contains 4 or more dwellings.
• A new provision is proposed to provide that the renamed ‘Apartment Design Guide‘ (formerly the Residential Flat Design Code) prevails over development control plans in respect of a number of matters including visual privacy, solar access and ceiling heights. The provisions of development control plans in respect of those matters are of no effect to the extent of the inconsistency with the Apartment Design Guide.
• A provision is proposed to be inserted to clarify that SEPP 65 does not prevail over State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.
• There are proposed changes to the establishment of design review panels. It is intended that the Minister will delegate the function of establishing panels to councils. All existing panels will be abolished once the amendment takes effect and new panels will need to be established.
• Car parking is added as a ground on which development consent cannot be refused if it complies with the recommended minimum amount of car parking set out in the Apartment Design Guide.

The Apartment Design Guide now covers some additional matters such as adaptive re-use, public domain interface and noise and pollution.

The car parking requirements of the Apartment Design Guide are important, given that this is now a ground on which development consent cannot be refused if the Apartment Design Guide is complied with.

The Apartment Design Guide states that there are no car parking requirements for developments within 400m of a light rail stop or railway station in nominated inner and middle ring Sydney metropolitan areas (currently 22 areas are nominated). This means that the number of car spaces in such developments within those areas cannot be used as a reason for refusing development consent. The Apartment Design Guide also encourages councils to limit on street parking for residents in those areas. Clearly these provisions attempt to increase housing affordability (by making available apartments without car parking), and to minimise reliance on cars. However, there is always in such cases an impact on neighbouring residents who rely on on-street parking.

For other developments in metropolitan Sydney within 800m of a light rail stop or railway station, the car parking requirements are the lesser of the council’s requirements (presumably contained in their development control plan), or those prescribed by the Roads and Maritime Services’ Guide to Traffic Generating Development, for development. This is the same for developments in nominated regional centres which are on land or within 400m of land zoned B3 or B4.

Apartment area is also a ground on which development consent cannot be refused if the Apartment Design Guide is complied with, and there is a new requirement that studio apartments have a minimum area of 35sqm.

The proposed amending instrument is on public exhibition and submissions can be made in respect of it until 31 October 2014. Information is available on the Department’s website.

As the instrument is a draft environmental planning instrument which is on public exhibition it needs to be taken into account when determining relevant development applications under s s79C of the Environmental Planning and Assessment Act 1979.