Emil Ford Lawyers

Building to a "Rule of Thumb" ... not good enough ...

A recent decision of the NSW Land and Environment Court has highlighted the complexity of compliance issues which can arise for developers.

The case concerned a residential development proposal for 158 apartments. The local Council sought to deny development approval on the basis that 37% of the proposed apartments failed to meet its minimum interior area requirements.

The Residential Flat Design Code (‘RFD Code’), under the relevant State Planning Policy provides certain minimum specifications which, if complied with, prevent consent being withheld on that basis. Confusingly, Part 3 of the RFD Code provides two inconsistent sets of specifications to be complied with. The first is contained in a Table, the second is directly below in a footnote entitled “Rules of Thumb”.

The “Rules of Thumb” generally allow for smaller apartment sizes than the Table. For instance, for a two bedroom apartment, the Table requires a minimum interior area ranging from 80–121m2, whereas the “Rules of Thumb” require just 70m2.

The developer had relied upon the “Rules of Thumb”, arguing that it was supported by a reading of the introductory material in the RFD Code. The developer also argued that relying on the “Rules of Thumb” reflected common industry practice.

The Court held that in fact the Table figures provide the relevant specifications, not those in the “Rules of Thumb”. The Court’s decision may also mean that developers cannot rely on other “Rules of Thumb” contained in the RFD Code, such as ceiling height specifications.

The take-home lesson is to thoroughly consider the implications of all planning regulations governing a development, never simply “Rules of Thumb”, introductory material, or industry practice.

If you would like to discuss any aspect of this, please contact or . Emil Ford Lawyers provides advice and service to clients in the property development and construction industry including in relation to acquisition, contracts and agreement, building contracts and disputes, sub-division and sales.

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