The making of SEPP 65 was notified on the NSW legislation website on 19 June 2015.  The new legislation and ADG will commence in 4 weeks, on 17 July 2015 and will apply to:

• residential flat buildings,
• shop top housing,
• multi-dwelling housing and,
• the residential component of mixed use developments.

Application of the amendments to SEPP 65 and the ADG will be phased in over the next four weeks. The following transitional arrangements will determine whether the current or proposed controls will apply to your application:

Applications lodged prior to 19 June and determined prior to 17 July 2015

All development applications lodged prior to 19 June and determined prior to 17 July will be assessed against SEPP 65, without amendment, and against the RFDC.

In relation to apartment size, this means that Councils can seek to impose under clause 30A(1)(b) of SEPP 65 the minimum internal and external apartment sizes as set out in the table on page 69 of the RFDC rather than the internal apartment sizes set out in the Rules of Thumb. This was explored in the Land and Environment Court judgement of Botany Bay City Council v Botany Development Pty Ltd.

Applications lodged prior to 19 June and determined after 17 July 2015

Development applications and modification of consent applications lodged prior to 19 June but determined after the commencement of the amendments to SEPP 65 and introduction of the ADG, will be assessed against SEPP 65 without amendment and the RFDC.

As with the above class of applications the minimum apartment sizes in the table on page 69 of the RFDC would apply.

Application lodged post 19 June and determined prior to 17 July 2015

Any development applications and applications to modify development consents meeting these criteria will be determined under SEPP 65 as amended and the new ADG. It is unlikely that many applications will satisfy the timing criteria and fall into this category. However if there were modification applications the following scenario could apply:

• Development Consent granted that specifies apartment sizes greater than the minimums in the ADG,
• An application under s.96 could be sought seeking a modification relying on the new minimum apartment sizes in the ADG,
• Apartment yield increases.

 Applications lodged post 17 July 2015

All development applications and modification of consent applications will be assessed under SEPP 65 as amended, and the ADG.

New objectives and design criteria that will apply to these applications include:

• Compliance with minimum setback distances to side and rear boundaries of a site are as set out below. Separate controls address separation of buildings within a development site:

**Gallery access circulation is required to be treated as habitable space when measuring privacy separation distances between neighbouring properties.

• Compliance with nominated minimum car parking requirements,
• Living rooms and private open spaces of at least 70% of apartments in a building to receive a minimum of two hours direct sunlight between 9am and 3pm at mid-winter in the Sydney Metropolitan Area and in the Newcastle and Wollongong local government areas. Further that a maximum of 15% of apartments in a building will receive no direct sunlight between 9 am and 3 pm at midwinter,
• Compliance with minimum ceiling heights,
• Every habitable room is required to have a window in an external wall with a total minimum glass area of not less than 10% of the floor area of the room. Daylight and air may not be borrowed from other rooms,
• Minimum area and dimensions for bedrooms excluding wardrobes, and
• Nomination of minimum balcony areas and widths.

SEPP 65 and the ADG will prevail to the extent of any inconsistency over a Council DCP in relation to:

• Visual privacy
• Solar and daylight access
• Common circulation and spaces
• Apartment layout
• Ceiling heights
• Balconies and private open space
• Natural ventilation
• Storage

Importantly, a consent authority can refuse a DA or modification if it is not satisfied that adequate regard has been given to:

• the design quality principles, and
• the objectives specified in the ADG for the relevant design criteria.

Read the full text of the amendments and new Apartment Design Guide 

An in-depth report on the implications of the amended provisions of SEPP 65 and the new design guidelines will be released in the coming weeks.

Urbis will issue a more detailed alert in the coming weeks and will host a panel discussion on the implications of the SEPP amendments and ADG.

For more information, please contact: