Posted on August 31, 2012 by
Update on equivalent zones under the Affordable Rental Housing SEPP
In our previous post on 28 June (Uncertainty about “equivalent zones” under the Affordable Rental Housing SEPP), we advised that two Commissioners of the Court had taken a different approach to that of Commissioner Tuor in relation to the question of the equivalence of the 2(a) zone in Bankstown and the R2 zone in the Standard Instrument Order.
The question arises under cl 5(1)(b) of State Environmental Planning Policy (Affordable Rental Housing) (SEPP ARH) and governs the permissibility of some kinds of affordable rental housing in certain land use zones.
Since then, Commissioner Morris has followed her own approach in finding that the 2(a) zone in Byron is also not equivalent to the R1 or R2 zones: see Stebbing & Anor v Byron Shire Council  NSWLEC 1129.
A section 56A appeal has also been heard against the Commissioner Morris’ decision in Chehade v Bankstown City Council  NSWLEC 1122. Sheahan J reserved his decision in this matter on 17 August, 2012 and we await the decision. LTL acted for the Council in this matter.
Whatever Sheahan J’s decision, it is unlikely to conclusively resolve the question for all other matters. Under clause 5(2) of SEPP ARH: ‘an assessment made by a relevant authority under subclause tian xiao cheng(1) (b) applies only in respect of the particular development that is proposed to be carried out and more than one such assessment may be made in respect of the same land use zone.’
It is therefore possible for a consent authority to come to a different conclusion in relation to other proposals in other zones provided the correct approach is taken.
As we previously suggested, one way to resolve the issue finally would be for the Director-General to make a determination under clause 5(1)(a) of SEPP ARH as to which zones are and which zones are not equivalent to land use zones in the Standard Instrument.