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    Landmark court case on minimum apartment sizes for NSW causes a stir

    Nathan Johnson

    A recent ruling on minimum apartment sizes from the NSW Land and Environment Court has prompted some industry bodies to question the implications larger apartment sizes might have on the state’s residential flat prices.

    In Botany City Council v Botany Developments Pty Ltd (No 2) on 9 April, Justice Sheehan went against a previous ruling from the court, which said that the Botany City Council decision to reject a development proposal for a 158 apartment building by Botany Developments was based on the wrong minimum apartment size guidelines.

    Botany City had rejected the proposal on the basis that apartments in the building did not meet the minimum apartment sizes as set out in the adjoining table of the Residential Flat Design Code (RFDC) under State Environmental Planning Policy 65 (SEPP65).

    However, their decision was overruled when the court found that the apartments did meet the “rules of thumb” standards included in the RFDC, which sets out the suggested size for one bedroom apartments to be 50sqm, two bedroom apartments 70sqm and three bedroom apartments 95sqm.

    Botany City then appealed to the court, arguing that the key metric was the table and not the rule of thumb – an argument Justice Sheehan agreed with.

    If this decision forms the precedent for future rulings, the minimum apartment sizing under SEPP65 for a one-bedroom (58sqm) and for a one-bedroom maisonette/loft apartment (71.4sqm), instead of the smaller minimums under the ‘rule of thumb’ could become the used guideline for council consent authorities in residential flat development applications.


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    Interdisciplinary consulting firm URBIS says the decision has implications for current and future development applications for residential flat developments in New South Wales in terms of affordability and apartment size.

    “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,” said URBIS.

    The Urban Taskforce, who’d prefer all approval bodies use the rules of thumb standards for determining development applications, also weighed in on the debate, suggesting that in some instances, raising the minimum floor space for apartments has increased the cost of apartments up to $200,000.

    “Some councils have argued for larger apartment sizes than the Government’s minimums and included these in their Development Control Plans,” says Urban Taskforce CEO, Chris Johnson.

    “All this does is increase the cost of apartments by up to $200,000 in some areas. Sydney is already one of the most expensive cities in the world for housing and the NSW Government must do all it can to minimise costs. One way to do this is to ensure that all councils conform to the same minimum apartment sizes.”

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