Minimum Apartment Sizes

12/06/2015 7:56 am
This article was prepared by DFP

Botany Bay City Council v Botany Development Pty Ltd (No 2) [2015] NSWLEC 55

MyMicroNYC-Gramercy-Micro-Apartments-Bloomberg-Earth-Day-2-1

On 9 April 2015, Justice Sheehan of the NSW Land & Environmental Court handed down a judgement on minimum unit sizes required by State Environmental Planning Policy No 65 (Design Quality of Residential Flat Development) (SEPP 65) and the Residential Flat Design Code (RFDC). The decision has significant implications for minimum apartment sizes for future residential flat building development applications and modifications.

SEPP 65 is a state-wide policy which establishes development controls for residential flat development. Under this policy, design provisions are contained within the RFDC. A consent authority must assess residential flat developments and associated modifications against the provisions of SEPP65 and the RFDC.

 

Under Clause 30A of SEPP65, a consent authority cannot refuse a residential flat development application when the proposal meets certain minimum standards contained within the RFDC. In the case of Botany Bay City Council v Botany Developments Pty Ltd (No 2) an inconsistency within the RFDC surrounding minimum unit sizes was highlighted. Botany Bay City Council (Appellant) argued that minimum apartment sizes are those set out in the adjoining minimum unit size table of the RFDC whereas Botany Development Pty Ltd (Respondent) argued minimum apartment sizes are those set out in the ‘Rules of Thumb’ of the RFDC.

In Botany Bay City Council v Botany Developments Pty Ltd (No 2), Justice Sheehan found that the minimum standards referred to in Clause 30A of SEPP65 were those set out in the table of the RFDC and not the ‘Rules of Thumb’ or a development control plan. The recent decision is likely to become the guideline used by councils and consent authorities for future rulings of residential flat development applications.

The minimum apartment sizes set out in the table of the RFDC are considerably larger than the minimum apartment sizes stipulated by the ‘Rules of Thumb’, where:

  • 1 bedroom minimum apartment sizes are up to 27% larger;
  • 2 bedroom minimum apartment sizes are between 14 to 28% larger; and
  • 3 bedroom minimum apartment sizes are over 30% larger.

The absolute differences in minimum apartment sizes can be seen in the table below.

Larger apartment sizes may result in greater comfort and amenity to occupiers however, the Urban Taskforce, an industry organisation representing property development interests, indicated that by raising the minimum apartment floor areas this could increase the cost of housing in New South Wales.

 

Comparative Minimum Apartment Sizes set out in the RFDC

 

Number of Bedrooms Minimum Apartment Size in Table (internal area) Minimum Apartment Size in the Rules of Thumb
1 bedroom Cross through 50m2 50m2
Maisonette 62m2
Single Aspect 63.4m2
2 bedrooms Corner 80m2 70m2
Cross through 89m2
Cross-over 90m2
Corner with study 121m2
3 bedrooms 124m2 95m2

 

If you have an inquiry in regard to the court ruling, please contact DFP to discuss. For more information visit Botany Bay City Council v Botany Development Pty Ltd (No 2) [2015] NSWLEC 55.