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A Contentious Middle Ground: The new Low Rise Medium Density Housing Code

A common refrain for Sydney’s residential expansion has been to push for more medium density housing. This is not entirely unsurprising as it fits in as a neat compromise between the sprawl created by low density residential and the bulky towers of dense residential. To help promote this new residential middle ground, the State government has introduced the Low Rise Medium Density Housing Code to simplify the process of obtaining planning consent for certain medium density residential developments. However, not everyone is excited by this change and some councils have already pushed to be excluded from the new planning rules.

A Contentious Middle Ground: The new Low Rise Medium Density Housing Code

The Code is set to commence on 6 July 2018 and will be inserted into the State Environmental Planning Policy (Exempt and Complying Codes) 2008. The Code will include certain types of medium density residential development as being what is known as “complying development”. Complying development is a form of development that is greatly streamlined from the usual development applications and allows a landowner to seek development consent from a private certifier instead of a government agency (such as the local council). The consent is provided in the form of a Complying Development Certificate (CDC) instead of the usual Development Consent.

The benefits of obtaining consent through complying development pathways instead of the usual development application are:

  • A much quicker turnaround, with certifiers potentially able to issue a CDC within a matter of days as opposed to the months that a traditional development application may take;
  • The process is often cheaper than traditional development consent pathways;
  • The requirements for notification of neighbours or other stakeholders is significantly reduced and most details regarding the development can be kept private; and
  • The greater level of certainty in obtaining the CDC, which can be issued provided the certifier is satisfied that it meets the applicable code, without any issues relating to public objections.

The new Code will allow complying development pathways to be used for:

  1. One and two-storey dual occupancy dwellings (e.g. semi-detached houses, duplexes etc.);
  2. Manor houses (being a two-storey building containing 3 or 4 dwellings); and
  3. Multi-dwelling terrace housing (being 3 or more dwellings on a single piece of land where no part of one dwelling is above any other dwelling, all dwellings are attached and face 1 or more public roads).

For dual occupancy, manor house or multi-dwelling terrace housing development to be approved through complying development they must comply with a number of requirements specified in the Code such as setbacks, height, gross floor area and landscaping amongst others. The development must also only occur in zones where medium density housing is allowed.

While this may seem like good news for those after a middle-ground of development, not everyone is happy. A total of 50 Local Government Areas (LGAs) listed on the Department’s website have had the Code deferred until 1 July 2019, with many Councils citing fears of over development and an inability for councils to intervene. A concern amongst many of these councils is that they have a large area of land zoned that allows medium density residential. With the council cut out of the decision-making under the Code, there would be no way for these councils to prevent this development except by rezoning. While the Department of Planning has suggested that councils which have deferred the Code can update their zoning to allow its introduction, there still remains opposition to the Code from those within some councils.

An area for concern for residents in areas that allow medium density developments is that the Code will allow developments whose design and aesthetics do not suit the character of the neighbourhood. A commonly occurring requirement under planning legislation is that new development must take into consideration whether it is compatible with the character of the local area.

Medium density under the Code must be consistent with the design criteria of the Medium Density Design Guide. In the draft version of the Medium Density Design Guide, some criteria aesthetic matters such as material used in the façade, types of fencing and inclusion of articulation zones. However some criteria involve providing a design statement regarding matters such as local character and architectural form. There is concern that simply requiring the inclusion of a statement is a low bar for compliance as far as aesthetics, design and character are concerned, with other considerations such as cost or size taking precedence in these developments. Ultimately, the prescriptive nature of complying development means that subjective consideration such as these are difficult to properly incorporate into the development.

The Code yet again raises the common debate between facilitating and promoting the construction of desired development against community and administrative concerns.

Alex Collie, Lawyer

Paul Carroll, Partner

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