SEPP 65 scrapped for pending development applications

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By Aaron Gadiel, Partner

Chapter 4 of the Housing SEPP (the new SEPP 65) now applies to all pending development applications, even those lodged before 14 December 2023.

On 14 December 2023 the State Environmental Planning Policy No 65 — Design Quality of Residential Apartment Development (SEPP 65) was repealed.

However, this did not signal the end of the Apartment Design Guide.

Instead, a new Chapter 4 was inserted into the State Environmental Planning Policy (Housing) 2021 (the Housing SEPP), titled ‘Design of residential apartment development’. This new chapter contains the substance of the former SEPP 65, with some changes.

However, as we explained in our December 2023 article, under the initial arrangements put in place:

  • The new Chapter 4 (‘Design of residential apartment development’) of the Housing SEPP did not apply to development applications that had been formally ‘lodged’ on the NSW Planning Portal before 14 December 2023.
  • There were no express savings or transitional provisions preserving the operation of SEPP 65 (for existing development applications) beyond its repeal on 14 December 2023.

We said that this may be an oversight by the Government. We suggested that people watch out for an amendment to fix this once the apparent error was realised.

The penny seems to have dropped with the Government. It has fixed this issue and addressed some other matters.

On 15 March 2024 the NSW Government published the State Environmental Planning Policy Amendment (Housing) 2024. This document revised the transitional provision set out in section 8(1) of Schedule 7A of the Housing SEPP.

The consequences of this change are as follows:

  • The December 2023 changes to the Housing SEPP (which included the new ‘affordable housing’ incentive scheme) no longer apply to any development application that includes an environmental impact statement prepared as per environmental assessment requirements issued on or before 14 December 2023.
  • The December 2023 changes to the Housing SEPP no longer apply to any modification application that was lodged on or before 14 December 2023.

A new provision applies the new Chapter 4 (‘Design of residential apartment development’) of the Housing SEPP to any development application or modification application, including those lodged before 14 December 2023. This provision is section 8(2A) of Schedule 7A of the Housing SEPP.

This change has three practical consequences for pending development applications.

Firstly, if you are a town planner or architect submitting documentation as part of an amendment to a pending development application, your documentation should address Chapter 4 of the Housing SEPP rather than SEPP 65.

For example:

  • The relevant design quality principles are now in schedule 9 of the Housing SEPP.
  • The provision (formerly clause 6A of SEPP 65) overriding some aspects of development control plans is now section 149 of the Housing SEPP.

The Apartment Design Guide itself has not changed.

Secondly, SEPP 65 included a provision that identified three standards that, if complied with, prevented the consent authority from refusing a development application for those matters (this was clause 30). These standards related to car parking, the internal area of each apartment and ceiling heights.

A previous loophole had potentially allowed a consent authority to escape this provision if there was alleged non-compliance with the design quality principles or the Apartment Design Guide objectives.

This loophole has been removed in the new provision (section 148 of the Housing SEPP).

This change now benefits pending development applications.

Thirdly, pending development applications now benefit from a new provision in the Housing SEPP that expressly says that a consent authority is not obliged to require compliance with design criteria specified in the Apartment Design Guide (section 147(3)).

This makes the original intent of the Apartment Design Guide clearer.

Compliance with the Apartment Design Guide is achieved by complying with the broadly-phrased qualitative objectives of the Guide.  The design criteria, including many numerical provisions, are not ‘requirements’. They are merely one way of achieving the relevant objectives of the Apartment Design Guide.  (Our article of October 2023 says more on this underlying principle.)

For further information, please do not hesitate to contact us.

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