By Clare Brown | 10 Apr 2015

A decision of Justice Sheahan on 9 April 2015 in Botany Bay City Council v Botany Development Pty Ltd (No 2) has implications for current and future development applications for residential flat development in New South Wales in terms of affordability and apartment size.

The key issue considered in the appeal was what is the minimum applicable apartment size for the assessment and determination of development applications for residential flat buildings.

 

These measurements are in stark contrast to the standard minimum 50sqm for a one-bedroom apartment...

Justice Sheahan considered the construction of clause 30A of SEPP 65 – which establishes standards that cannot be used as grounds to refuse development consent for residential flat buildings – and found that the standards referred to in that clause were those set out in the table of the Residential Flat Design Code (RFDC) and not the Rules of Thumb or a development control plan.

This will mean that the minimum apartment size under SEPP 65 for a one-bedroom, cross-through apartment is 58sqm (50sqm internal and 8sqm external), and for a one-bedroom maisonette/loft apartment is 71.4sqm (62sqm internal and 9.4sqm external).

These measurements are in stark contrast to the standard minimum 50sqm for a one-bedroom apartment, as nominated in the Rules of Thumb and generally adopted by industry and consent authorities in the design and approval of residential apartment development.

 

  1. If the minimum internal AND external areas as set out in the table in the RFDC (p79) are not met by a proposed development the consent authority can refuse the development application on the grounds of apartment size.
  2. If a development control plan adopted minimum apartment sizes greater than the standard set out in the table to the RFDC and the development proposed satisfied the RFDC minimums but not the DCP minimums the consent authority could not refuse the development application on the basis of apartment size.
  3. If the minimum apartment sizes (internal and external) are enforced by consent authorities this will have implications for:
  • unit mix and apartment types;
  • project feasibility;
  • general layout and design of apartment development, and
  • general housing affordability.

 

If the minimum standards for apartment size in the RFDC are enforced this will have implications for current and future development applications for residential flat development in New South Wales.

If the minimum standards for apartment size in the RFDC are enforced this will have implications for current and future development applications for residential flat development in New South Wales.

For example the minimum apartment sizes for a three bedroom apartment will be 35 per cent larger than the minimum presented in the Rules of Thumb and 30 per cent larger than for a one-bedroom maisonette.

A link to the judgement can be found here

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