57 square metre Botany one bedders ruled too small by NSW Land & Environment Court

The NSW Land and Environment Court has made a ruling on minimum apartment sizes which developers dread could have implications for project profits.

The decision, Botany City Council v Botany Developments Pty Ltd (No 2), was handed down by Justice Sheehan last week after council was represented by L&E Court veteran Tim Hale SC.

It ruled that the larger sizes set out in State Environmental Planning Policy 65 were the most appropriate for residential flat design for the 72-86 Bay Street project. The property had been bought from UNSW for $7.1 million in 2011.

It shocked the industry as smaller apartment sizes have been typically accepted by the industry and consent authorities.

Currently developers operate under the "rule of thumb" that the minimum size for a one-bedroom apartment internal space is 50 square metres.

But the court ruled the minimum was too small.

Bigger apartment rules will affect unit mix and apartment types, project feasibilities, and the general layout and design of apartment projects.

The Botany case was over a proposed development of 158 apartments, where some apartments fell below the official rules by a square metre or two.

The proposed apartment sizes, with one-bedroom units at between 50.7 square metres (internal and 8 square metre balcony) and 67.5 square metres plus balcony, did not meet the minimum standards of Botany City's Development Control Plan and Botany City rejected the proposal.

The developer went to the Land and Environment Court and won in January 2014 because the sizes exceeded those set out in the state environmental planning policy's rules of thumb.

But Botany Council then appealed that decision, arguing at the May 2104 hearing that the key metric was the residential flat development code table, not the rules of thumb. 

Their appeal asserted that the Commissioner erred in granting consent for a development in which the unit sizes did not meet the minimums prescribed in The City of Botany Bay Development Control Plan 2013 (“the DCP”) where dwellings within residential flat buildings must be designed to provide the following minimum internal areas:

• studio: 60m²
• 1 bedroom: 75m²
• 2 bedrooms: 100m²
• 3 bedrooms: 130m²
• 4 bedrooms: 160m²

Dwelling size means the area inside the enclosing walls of a dwelling but excludes wall thickness, vents, ducts, staircases and lift wells.

It was common ground that the apartments do not meet these unit sizes as the development was comprised of 1 bedroom units of areas between 50.7m² and 67.5m², its two bedroom units between 78.1m² and 93.8m², and the bedroom units between 98.1m² to 98.9m².

The so-called rule  of Thumb for Apartment Layout in the [RFD Code] state: