We previously reported on the commencement of State Environmental Planning Policy (Housing) 2021 (“Housing SEPP”) on 26 November 2021. A copy of the article 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.
Clauses 1 and 2 of Schedule 7 (titled “Savings and transitional provisions”) in the Housing SEPP provide as follows:
“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repealed instrument means an instrument repealed under Chapter 1, section 10.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The former provisions of a repealed instrument continue to apply to the following—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.”
In our previous article, we noted that the form of the savings provision in the adopted version of the Housing SEPP differed from the form of the provision contained within the public consultation draft. We also speculated that there could be some uncertainty in the manner of applying the adopted version of the savings provision to development applications lodged before the commencement of the Housing SEPP.
The case of Emag Apartments Pty Limited v Inner West Council [2022] NSWLEC 1042 (“Emag”) was handed down on 1 February 2022 and is the first decision of a Commissioner of the Land and Environment Court (“LEC”) that we have seen that seeks to apply the savings provision in the Housing SEPP.
The Emag case concerned a development application seeking consent for the demolition of existing structures and construction of an 8 storey mixed use development comprising a boarding house and commercial tenancies. The development application had been refused by the Sydney Central City Planning Panel on 10 June 2021 and made the subject of an appeal in Class 1 of the LEC’s jurisdiction prior to the commencement of the Housing SEPP.
It was submitted on behalf of the Council that the savings provision does not explicitly the stay the provisions of that instrument, both the former SEPP ARH and Housing SEPP would be binding upon the Court’s determination of the development application. In other words, the Council contended that there is nothing in the savings provision that precludes the Housing SEPP from applying in addition to SEPP ARH.
On the other hand, the Applicant submitted that the savings provision clearly had the effect of continuing the provisions of SEPP ARH in respect of the development application when read on its terms.
However, the parties agreed in the alternative that the Housing SEPP should at the least be considered as a draft instrument that is imminent and certain (given it had commenced) and will shape the desired future character of development in the area.
Commissioner Horton’s conclusion relating to the application of the Housing SEPP was as follows (with emphasis added):
“[38]While I have some sympathy for the Applicant’s submission at [35]-[38], as the wording of the savings provision does not expressly preclude operation of the provisions contained in the Housing SEPP, and because no inherent inconsistency arises from the operation of both SEPPs, being in similar terms, I reluctantly accept the Respondent’s argument that consideration must be given to the provisions of both the SEPP ARH and the Housing SEPP.”
Conclusion
The Emag case is a decision of a Commissioner of the LEC and is therefore not binding upon future decision makers. However, the conclusion reached is indicative of the difficulties inherent in the drafting of the savings provision in the Housing SEPP.
There will no doubt be further decisions published in the coming months dealing with the application of the Housing SEPP to remaining development applications lodged while SEPP ARH was in force. We will review those decisions with anticipation.
For further information on these planning and environmental law updates, please contact Adam Seton on aseton@marsdens.net.au or (02) 4626 5077 and David Baird on dbaird@marsdens.net.au or (02) 4626 5077.
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.
