Ruling on minimum apartment sizes

Ruling on minimum apartment sizesLast week the NSW Land and Environment Court made a ruling on minimum apartment sizes, potentially impacting on residential projects across NSW. In the ruling issued on April 9 by the Court concerning Botany City Council v Botany Developments Pty Ltd (No 2), Justice Sheehan decided that the ‘rules of thumb’ of the Residential Flat Design Code that are generally relied upon by developers, are not the appropriate guideline for minimum apartment sizes. The court instead relied upon the adjacent table in the Residential Flat Design Code as providing the correct minimum dimensions for apartments in the State.NSW first introduced minimum apartment sizes in 2002 with a set of design rules contained under State Environmental Planning Policy No. 65 (SEPP 65).In 2008, the NSW Government introduced a new ‘clause 30A’ to SEPP 65, in part, to unblock the system, and ensure a consent authority cannot refuse development consent on the grounds of ‘apartment area’.But within clause 30A are two separate lists of apartment sizes. The first is a table that forms part of the ‘better design practice guidelines’. The second is set out in the rules of thumb. Some of the apartment minimum areas nominated in the table are up to per cent larger than minimums in the rules of thumb. In last week’s decision, the Court determined that the table in the guidelines takes precedence over ‘rules of thumb’ in the Code.In September 2014 the NSW Government issued a draft Apartment Design Guide that defined minimum apartment sizes in accordance with the earlier ‘rules of thumb’.This decision of the Land and Environment Court could have far-reaching ramifications for Sydney’s property sector, potentially increasing the average size and cost of apartments within a market that’s already overheated. The government needs to urgently clarify its position, through finalisation of its draft design code, and provide certainty to industry. To view our press release on this issue click here.