By Aaron Gadiel, Partner

The NSW Government has moved to ensure that the Apartment Design Guide cannot be routinely applied to ‘co-living housing’.  This decision was published on Friday 12 August 2022.

Under the definitions used in most planning controls, a modern boarding house (where each room has its own bathroom and kitchenette) is also a ‘residential flat’ in a ‘residential flat building’.  This means that, without a special provision, residential flat building controls have applied to boarding houses.

To deal with this — and to avoid State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65) being applied to boarding houses — for many years clause 4(4) of SEPP 65 has expressly excluded boarding houses from its operation.

The clause has said: ‘Unless a local environmental plan states otherwise, this Policy does not apply to a boarding house … (bold added)’.

However, since the creation of the ‘co-living housing’ development type last year, the expression ‘boarding house’ no longer includes rooming houses that are not managed by a registered community housing organisation.  For-profit rooming houses are now covered by the separate ‘co-living housing’ development type.

Clause 4(4) was not extended to also include ‘co-living housing’ on the split of boarding houses into two categories.

The consequence was that most mixed-use development that includes co-living housing (eg retail on the ground floor and co-living housing above) was captured by SEPP 65 and the Apartment Design Guide.

We have encountered efforts by local government to enforce this new regime. That is, local government has required that co-living housing in a mixed use development comply with the Apartment Design Guide.

The government now seems to have accepted that there was no apparent logic in:

• excluding all boarding houses from SEPP 65;
• excluding co-living housing from SEPP 65 if it is a single-purpose building; and
• applying SEPP 65 to co-living housing when, for example, there is a retail use on the ground floor.

On Friday 12 August 2022, the government published the State Environmental Planning Policy Amendment (Housing Supply) 2022.  This document now ensures SEPP 65 and the Apartment Design Guide will not apply to any form of co-living housing (unless a local environmental plan otherwise requires it).

It is good that the planning system will once again operate in a consistent, logical fashion — on this issue, at least!