By Aaron Gadiel, Partner
The NSW Government has quietly made some further changes to state-level planning controls for housing.
The changes were made by the misleadingly named Ballina Local Environmental Plan 2012 (Amendment No 58) on 12 December 2025.
This amendment effected some changes to the State Environmental Planning Policy (Housing) 2021 (the Housing SEPP).
On the 28 November 2025 the NSW Government amended the Housing SEPP to incorporate its mid rise pattern book. Mills Oakley published an article about this change earlier this month.
In that article we identified a major flaw with the new regime.
The non-discretionary development standards for ‘low and mid rise housing’ areas (set out in Chapter 6 of the Housing SEPP) had been turned-off for mid rise pattern development.
This meant that — if a developer chose to adopt a mid rise pattern — the additional height and floor space ratio that is generally made available for ‘low and mid rise housing’ areas could not be accessed.
Instead, the proposed development would be evaluated against the otherwise applicable height and floor space ratio maximums. This would likely make mid rise pattern development unviable in the ‘low and mid rise’ housing areas.
The Government’s latest changes have rectified this problem in relation to the height control.
The ‘low and mid rise housing’ areas height control is no longer set aside.
However, the additional floor space ratio that is generally made available for low and mid rise housing areas still does not apply when mid rise pattern book development is pursued.
There are no express provisions in the Housing SEPP that override the local floor space ratio. Indeed, the Housing SEPP only explcitly sets aside other provisions the Housing SEPP for mid rise pattern book development. It does not expressly set aside any local environmental plan provisions.
Furthermore, the Housing SEPP explicitly says that any mid rise pattern book development will only get the benefit of the exemption from certain Housing SEPP provisions if the development is permitted with development consent under an environmental planning instrument that applies to the land (section 183(1)(a), section 183(2)(a) and section 183(3)(a)).
We expect that local councils will say that a development that exceeds the local floor space control in a mid rise housing area is not a development that is permitted with development consent. If this is accepted by a court, it would rob pattern book development of, among other things, the benefit of the carve-out from assessment under the Apartment Deign Guide (and also necessitate one or more clause 4.6 requests).
It is surprising that there is no provision specifying that the development standards, location requirements, technical drawing set and technical information in the mid rise patterns are non-discretionary development standards.
In fact, there is no express provision imposing them as standards at all. Based on the current Housing SEPP text, local councils are likely to argue that these documents are only relevant for establishing what development benefits from the Housing SEPP exclusions.
We expect there to be legal debate about the status of these provisions.
It is disappointing that the legal provisions governing the new mid rise pattern book regime remain so vague, despite the amendments made on 12 December 2025.
In our article of 2 November 2025 we reported on NSW Government action to resolve some of the ambiguities in its ‘low and mid rise’ housing reforms introduced earlier this year.
In that article, we explained that a ‘low and mid rise housing inner area’ is defined as any of the following:
The ‘low and mid rise housing outer area’ is defined as any of the following:
(Developers should not lose sight of the fact that there are many carve-outs from these areas.)
‘Walking distance’ has been defined to mean the shortest distance between two points. This distance must be measured along a route that may be safely walked by a pedestrian using, as far as reasonably practicable, public footpaths and pedestrian crossings.
We explained that the walking distances are not subject to any statutory mapping. That is, no statutory maps have been prepared that actually sets out the boundaries of the two ‘low and mid rise housing’ areas.
The original provisions did not expressly say what happens when only part of a development site is within the 400-metre or 800-metre walking distance.
This problem was partly addressed in October.
Changes at that time made it clear that a lot will now be included in a ‘low and mid rise housing’ area if part of a lot is on land that is within the nominated walking distance.
This means that a developer may consolidate several lots to form a single lot and potentially benefit from the scheme for ‘low and mid rise housing’ areas.
However, this was not a complete solution to the problem. Developers who had optioned land (whilst they are seeking development consent) are generally unable to consolidate lots prior to the grant of development consent.
The Government has now further addressed this issue in its 12 December 2025 amendments.
The provisions have been changed so that the definitions of ‘low and mid rise housing area’, ‘low and mid rise housing inner area‘ and ‘low and mid rise housing outer area’ no longer refer to ‘lots’.
Rather, the expressions are now defined in terms of ‘site area’.
The express exclusion of Ballina Shire Council from the Low Rise Housing Diversity Code and the Pattern Book Development Code has been removed.
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