The Better Apartments Design Standards

21 April 2017
Sonia Apikian, Partner, Melbourne Biljana Apostolova, Partner, Melbourne Kimberley Arden, Partner, Brisbane Victor Asoyo, Partner, Brisbane Kerry Awerbuch, Partner, Melbourne Michael Bampton, Partner, Sydney Jodylee Bartal, Partner, Melbourne Donna Bartlett, Partner, Sydney James Beckley, Partner, Sydney Gail Black, Partner, Brisbane Brihony Boan, Partner, Melbourne Kathleen Conroy, Partner, Brisbane David Coombes, Partner, Melbourne Scott Couper, Partner, Brisbane Jim Demack, Partner, Brisbane Andrew Denehy, Partner, Melbourne Khilen Devani, Partner, Brisbane Ian Dixon, Partner, Melbourne Romana Duthie, Partner, Melbourne Guy Edgecombe, Partner, Brisbane Shantal Evans, Partner, Brisbane Brett Feltham, Partner, Sydney Gavin Forrest, Partner, Melbourne Susan Forrest, Partner, Brisbane Annette Gaber, Partner, Melbourne Craig Green, Partner, Brisbane Tony Greenaway, Partner, Melbourne Peter Grotjan, Partner, Melbourne Jonathon Hadley, Partner, Brisbane Robert Hinton, Partner, Melbourne Lionel Hogg, Partner, Brisbane Natasha Hood, Partner, Brisbane Stafford Hopewell, Partner, Brisbane Andrew Kennedy, Partner, Melbourne Michael Kenny, Partner, Melbourne Gary Koh, Partner, Brisbane Meg Lee, Partner, Melbourne Paul Lewis, Partner, Sydney Rose Lockie, Partner, Melbourne Chris Ludescher, Partner, Melbourne Dermott Lynch, Partner, Sydney Brad Marland, Partner, Brisbane Hazel McDwyer, Partner, Sydney Fidelis McGarrigan, Partner, Adelaide Glenn McGowan QC, Partner, Melbourne Nicholas McKenzie-McHarg, Partner, Melbourne Kathy Merrick, Partner, Sydney Daniel Middleton, Partner, Melbourne Clare Miller, Partner, Melbourne Stephen Moulton, Partner, Melbourne Siobhan Mulcahy, Partner, Melbourne John Nicolas, Partner, Brisbane Edward Nixey, Partner, Sydney Michael Owens, Partner, Brisbane Antoine Pace, Partner, Melbourne Richard Partridge, Partner, Melbourne Sabine Phillips, Partner, Melbourne Peter Poulos, Partner, Melbourne Elliot Raleigh, Partner, Melbourne Matthew Raven, Partner, Brisbane Jol Rogers, Partner, Melbourne James Roland, Partner, Sydney Rachel Sciascia, Partner, Brisbane Lui Scipioni, Partner, Melbourne Doug Scobie, Partner, Melbourne Barbara-Ann Sim, Partner, Brisbane David Smith, Partner, Melbourne Archie Smith, Partner, Sydney Jeremy Smith, Partner, Melbourne Paul Spiro, Partner, Brisbane Renae Suttor, Partner, Sydney Simon Theodore, Partner, Melbourne Sarah Toohey, Partner, Brisbane Robert Tracy, Partner, Sydney Steven Troeth, Partner, Melbourne Adam Walker, Partner, Melbourne Jason Walker, Partner, Melbourne Patrick Walsh, Partner, Melbourne Malcolm Watson, Partner, Melbourne Zoe Baré, Special Counsel, Melbourne Jasmina Bradonjic, Special Counsel, Melbourne Peter Carroll, Consultant, Brisbane Sharon Christensen, Consultant, Brisbane Travis Coldrey, Special Counsel, Melbourne Greg Conomos, Special Counsel, Sydney Breanna Davies, Special Counsel, Sydney Louise Dorian, Special Counsel, Melbourne Russell Ensbey, Special Counsel, Brisbane Anders Fransson, Consultant, Brisbane Doug Goodman, Special Counsel, Melbourne Sean Huggins, Special Counsel, Melbourne Kane Jacobson, Director, Brisbane Shanna Livingstone, Special Counsel, Melbourne Claire Lovejoy, Director, Brisbane Kelly Marshall, Director, Brisbane James Mitchell, Special Counsel, Brisbane Angela Nunn, Special Counsel, Melbourne Gerard O'Hara, Special Counsel, Melbourne Jacqueline Ogden, Director, Brisbane Caroline Ord, Special Counsel, Melbourne Mark Peacock, Special Counsel, Brisbane Louise Schmid, Special Counsel, Melbourne Grant Scott-Hayward, CEO, Melbourne Peter Snaddon, Special Counsel, Melbourne Robert Swiatlo, Special Counsel, Melbourne Dawn Tran, Director, Brisbane Alexandra Walker, Special Counsel, Melbourne Damian Walsh, Special Counsel, Melbourne

Following the Better Apartments Draft Design Standards released late last year (refer to our Article here), Amendment VC136, which introduces the final version of the Better Apartments Design Standards (BADS) into all Victorian planning schemes, was gazetted on 13 April 2017.

The BADS are an entirely new set of standards which are now applicable to any application to construct or extend an apartment development of over 5 storeys, and some new standards for apartment developments of up to 4 storeys to the existing provisions under Clause 55.

Partner Meg Lee and lawyer Linda Choi highlight the key changes.

Amendment VC 136

The Amendment VC136 introduces a new definition for the term ‘Apartment’ under Clause 72 and changes the Victoria Planning Provisions (VPP) and all Victorian planning schemes by:

  • inserting a new Particular Provision at Clause 58 (Apartment Developments)

    which introduces new standards for apartments of 5 storeys or more (excluding basement) in a residential zone and all apartment developments in other zones;

  • amending Clause 55 (Two or more dwellings on a lot and residential buildings)

    to include new requirements for apartment developments (4 storeys or less);

  • deleting Clause 52.35

    (Urban context report and design response for residential development of five or more storeys);

  • amending Clause 43.05 (Neighbourhood Character Overlay)

    to prevent Standards B35 (energy efficiency objectives) and B49 (natural ventilation objectives) of Clause 55 from being modified in a schedule to the overlay; and

  • amending the following zones

    to require apartment developments of 5 storeys or more to meet the requirements of Clause 58 and to update the decision guidelines to require the responsible authority to consider Clause 58:

    • 32.04 (Mixed Use Zone)
    • 32.05 (Township Zone)
    • 32.07 (Residential Growth Zone)
    • 32.08 (General Residential Zone)
    • 34.01 (Commercial 1 Zone)
    • 37.01 (Special Use Zone)
    • 37.02 (Comprehensive Development Zone)
    • 37.04 (Capital City Zone)
    • 37.05 (Docklands Zone)
    • 37.06 (Priority Development Zone); and
    • 37.08 (Activity Zone)

The apartment definition is “A dwelling located above the ceiling level or below the floor level of another dwelling and is part of a building containing two or more dwellings”.  This makes it clear that the BADS only apply to ‘dwellings’ and therefore do not apply to student accommodation which are not a stand-alone ‘dwellings’ or to other forms of accommodation such as residential buildings (which includes aged care, nurses homes etc.).

Clause 58 (Apartment Developments)

Clause 58 applies to all apartment developments of 5 or more storeys in residential zones or to any apartment development in the Commercial 1 Zone, Special Use Zone, Comprehensive Development Zone, Capital City Zone, Docklands Zone, Priority Development Zone or Activity Centre Zone.

Clause 58 consists of 7 sub clauses which firstly require an urban context report and a design response report to be prepared (Clause 58.01 – which is similar to pre-existing clause 52.35) and then goes on to provide, in a similar manner to clause 55, a set of both objectives (which must be achieved) and standards (which provide one means of achieving the objectives) for the following matters:

  • urban context

    (Clause 58.02) including dwelling diversity objectives and integration with the street objectives;

  • site layout

    (Clause 58.03), including energy efficiency, open space and solar access objectives. Development with 40 or more dwellings should provide a minimum area of communal open space of 2.5 m2 per dwelling or 250 m2, whichever is lesser. The communal outdoor open space should be located on the north side “if appropriate” and at least 50 per cent or 125 m2, whichever is lesser, should receive a minimum of two hours of sunlight between 9m and 3pm on 21 June;

  • amenity impacts

    (Clause 58.04) in relation to building setback, internal views and noise impacts .  No metric requirements are provided for the building setback standard.  However, if a zone or a schedule to a zone specifies a building setback requirement different from a requirement under Clause 58.04-1, the building setback requirements in the zone or a schedule to the zone applies;

  • on-site amenity and facilities

    (Clause 58.05) relating to accessibility and minimum circulation area for bathrooms and entry, minimum private open space (including minimum balcony sizes) and storage requirements .  If a condenser is located on a balcony, the balcony should provide an additional area of 1.5 m2;

  • detailed design

    (Clause 58.06), including common property, site services, waste and recycling objectives and standards; and

  • internal amenity

    (Clause 58.07) which prescribes minimum dimensions for bedrooms (3 x 3.4m for main bedroom and 3 x 3m for all other bedrooms) and living area (3.3m width and 10 m2 for studio and 1 bedroom dwelling, and 3.6m width and 12 m2 for a 2 or more bedroom dwelling). These provisions also include window objective and standards in relation to daylight to habitable rooms and natural ventilation where at least 40 per cent of dwellings should provide effective cross ventilation that has a maximum “breeze path” prescribed.

Transitional Provisions

The Transitional Provisions are inserted into all zones being amended under Amendment VC136.  Clause 58 does not apply for an application for a planning permit lodged before the approval date of Amendment VC136 (i.e. 13 April 2017) or to an application for an amendment of a permit under section 72 of the Planning and Environment Act 1987, if the original permit application was lodged before 13 April 2017.  For these applications, Clause 55 of this scheme, as in force immediately before, continues to apply.  It is notable that the Transitional arrangements differ from those under the new Residential Zones where there is no savings for amendments of applications lodged prior to that approval date.

How good are BADS?

A recent industry seminar on BADS1 , which provided the perspective of an architect, a planner and a Queens Counsel on the Victorian Government’s publication – Better Apartments Design Standards – New apartment design standards for Victoria (December 2016), revealed that opinion on how the new standards will impact the industry is divided. The seminar was, however, prior to the release of the new Clause 58.

For planners and permit applicants, BADS have undoubtedly added another set of complex assessment hurdles to the application process. For apartment developments that are 5 storeys or more, the planning permit application would now most likely need to be supported by expert reports on daylight, ventilation and accessibility.

From a designer’s perspective, however, the BADS are seen as a positive change that will improve apartment design and amenity standards.2   It is suggested that the paring back of some of the more prescriptive and ambitious measures that were in the draft version of the BADS have helped to minimise the impact on yield, building costs and affordability for consumers.3

From a legal perspective, aspects of the BADS and the drafting of some aspects of clause 58 may lead to some uncertainty and room for interpretation. Whilst the permissive language adopted in many of the provisions is necessary given the application of the BADS across a wide range of zones and site contexts, whether it is “appropriate” or “practical” for a development to meet the requirements (such as building setback objectives) may potentially be fertile grounds for dispute.

In general, the BADS appear to be a step in the right direction for encouraging liveable and sustainable growth of our cities, while hopefully not impacting cost and therefore affordability too significantly.  However, it is unclear as to how BADS will interface with some of the existing planning controls and site contexts, and therefore only time will tell as to whether they will achieve good or optimum outcome on all levels.

1 Victorian Planning and Environment Law Association (VPELA) Seminar – Better Apartments Design Standards An Essential Guide, 23 March 2017.

2 Chris Hayton, Principal at Rothe Lowman Architects at the VPELA seminar, 23 March 2017.

3 Chris Hayton suggested that the cost impost from the BADS would be approximately $16,000 per apartment compared to a projection of $40,000 per apartment based on the draft BADS.

This update does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.

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