Overview
We had previously reported on the proposed changes set out in the public consultation draft of State Environmental Planning Policy (Housing) 2021 (“Housing SEPP”) and the manner in which those draft provisions were required to be taken into consideration by consent authorities in determining development applications prior to it coming into force. A copy of our previous article can be accessed here.
The Housing SEPP was published and commenced operation on 26 November 2021. A copy can be accessed here.
The Housing SEPP repeals the following housing-related SEPPs and consolidates them into a single instrument:
- State Environmental Planning Policy (Affordable Rental Housing) 2009 (“SEPP ARH’);
- State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004;
- State Environmental Planning Policy No 70 – Affordable Housing (Revised Schemes);
- State Environmental Planning Policy No 21 – Caravan Parks; and
- State Environmental Planning Policy No 36 – Manufactured Home Estates.
Boarding houses
Our previous article detailed a number of the proposed provisions specifically relating to development for the purposes of boarding houses, although the Housing SEPP now deals with a variety of other forms of affordable and diverse housing including (but not limited to) in-fill affordable housing, secondary dwellings, group homes, co-living housing, build-to-rent housing and housing for seniors and people with a disability.
The provisions we had referred to included limiting the permissibility of boarding houses in Zone R2 to only within “accessible areas” (for land within the Greater Sydney Region), a requirement to use boarding houses as “affordable housing” in perpetuity and the introduction of various non-discretionary development standards for that form of development.
These provisions have generally been incorporated into the published version of the Housing SEPP with certain minor amendments and will no doubt be of great interest to councils familiar with the previous provisions of SEPP ARH and the other relevant former planning instruments.
It is important to note that some non-discretionary development standards applying to boarding houses (along with other affordable and diverse housing types) in terms of setbacks and landscaping and the like are established with reference to what is set out in a “relevant planning instrument”. The term “relevant planning instrument” is defined in the Dictionary to the Housing SEPP as including “an environmental planning instrument, other than this Policy, or a development control plan, if any, that applies to the land on which the development will be carried out” (with emphasis added). This adoption of the controls contained within a development control plan is undoubtedly an interesting shift from what was previously contained in SEPP ARH.
Co-living housing
One new form of housing covered by the Housing SEPP that may also be of particular interest to councils is “co-living housing”. Instead of being defined in the Housing SEPP, the term has been inserted into the Standard Instrument by way of the Standard Instrument (Local Environmental Plans) Amendment (Miscellaneous) Order 2021, which was also published and commenced on 26 November 2021.
The definition has some obvious similarities to the previous definition of “boarding house” and is as follows:
“co-living housing means a building or place that—
(a)has at least 6 private rooms, some or all of which may have private kitchen and bathroom facilities, and
(b) provides occupants with a principal place of residence for at least 3 months, and
(c) has shared facilities, such as a communal living room, bathroom, kitchen or laundry, maintained by a managing agent, who provides management services 24 hours a day,
but does not include backpackers’ accommodation, a boarding house, a group relevant planning instrument means an environmental planning instrument, other than this Policy, or a development control plan, if any, that applies to the land on which the development will be carried out.”
Importantly, clause 67 of the Housing SEPP only makes development for the purposes of “co-living housing” permissible on land in a zone in which development for that specific purpose or development for the purposes of a residential flat building or shop top housing is permitted under another planning instrument.
Unlike the FSR bonuses previously available to boarding houses under SEPP ARH (which depended on the nature of existing maximum floor space ratio), “co-living housing” projects are eligible for a blanket 10 per cent FSR bonus on top of the maximum permissible floor space ratio for residential accommodation on the land pursuant to clause 68(2) of the Housing SEPP.
“Co-living housing” is also subject to a number of other non-discretionary development standards and other standards under the Housing SEPP, which are generally similar to those now applying to boarding houses under that instrument.
Given boarding houses are now required to be affordable in perpetuity, it seems to us that many projects that would previously have proceeded as boarding houses will now be lodged as “co-living housing”, providing the permissibility requirement and other standards are able to be met.
Savings Provision
While the Housing SEPP adopts many of the provisions shown in the public consultant draft, the draft was not wholly adopted. One example of a changed provision is the savings provision.
In our previous article, we noted that the public consultation draft contained the following savings provision:
“2 General savings provision
The former provisions of a repealed instrument continue to apply to the following—
(a) a development application made, but not yet determined, on or before the repeal day,
(b) a development consent granted on or before the repeal day.”
We noted that the effect of this provision was likely to be that development applications made after the commencement of the SEPP were to be subject to its application, while existing development applications (lodged prior to the commencement) were likely to be saved. In the latter case, the SEPP would be required to be considered as a draft instrument the subject of public consultation in accordance with section 4.15(1)(a)(ii) of the Environmental Planning and Assessment Act 1979, where relevant to an existing development application.
The version of the Housing SEPP as published contained the following alternative savings provision:
“1 Definitions
In this Schedule—
commencement date means the day on which this Policy commenced.
repealed instrument means an instrument repealed under Chapter 1, section 10.
2 General savings provision
The former provisions of a repealed instrument continue to apply to the following—
(a) a development application made, but not yet determined, on or before the commencement date,
(b) a concept development application made, but not yet determined, on or before the commencement date,
(c) a staged development application made subsequent to a concept development application approval granted on or before the commencement date,
(d) a development consent granted on or before the commencement date,
(e) an environmental impact statement prepared in compliance with an environmental assessment requirement that is—
(i) issued by the Planning Secretary on or before the commencement date, and
(ii) in force when the statement is prepared.”
At first glance, it would seem that the adopted savings provision is likely to have the implications we had anticipated for existing and future development applications. However, it is relevant to note that the provision does not utilise the drafting style usually employed within savings provisions in SEPPs, which states that an application may be determined as if the subject policy had not been made, rather than that a repealed instrument continues to apply.
The savings provision now contained within the Housing SEPP has not yet been considered by the courts to our knowledge and there may therefore be some uncertainty in the manner of its application.
Conclusion
As the Housing SEPP is now in force, councils should ensure that they are fully familiar with its provisions so that the new requirements can be appropriately applied to development applications made after the commencement date or considered in the assessment of those lodged beforehand.
Should you have any queries in relation to this update and the provisions of the new Housing SEPP generally, please do not hesitate to contact Adam Seton at aseton@marsdens.net.au.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
