Housing SEPP: LEC confirms s19 parking standards

Numerous judgments in the NSW Land and Environment Court have considered the scope of non-discretionary development standards under the State Environmental Planning Policy (Housing) 2021 (Housing SEPP).

In the recent decision of Kogarah Investments No 1 Pty Ltd v Georges River Council (2025/23807) (Kogarah Investments) - in which Bartier Perry acted for the successful applicant - the Court considered whether visitor parking can be required in addition to the parking calculated under section 19 of the Housing SEPP for infill affordable housing.

In brief: the Court held that the non-discretionary parking standards in section 19 of the Housing SEPP represent the total parking requirement for the development. The visitor parking requirement that otherwise applies to residential flat buildings under section 148(2)(a) does not apply cumulatively.

Section 19 is self-contained: if the section 19 parking formula is met, consent authorities cannot impose more onerous parking requirements.

• No implied ‘visitor parking’ add-on: section 148(2)(a) does not apply by default where section 19 is silent on visitor parking.
• Drafting takeaway: cumulative operation would require an express cross-reference in the Housing SEPP.

Background

The subject appeal was in respect of an application for alterations and additions to an approved 11-storey residential flat building and included the construction of 5 additional storeys, incorporation of a ground floor communal open space, various internal reconfigurations and amended façade design, resulting in a 16-storey development containing 95 apartments (including 17 apartments to be used as affordable housing) over 72 basement parking spaces across 3 basement levels.

In summary, the key issue pressed by the Council was that the proposed development provided insufficient visitor car parking. The Council contended that it had not been demonstrated there would be no unacceptable impact on on-street parking availability, and no request had been made to vary the non-discretionary development standard in section 148(2)(a) of the Housing SEPP.

The Applicant’s position was that a condition requiring additional parking (by way of visitor parking) over and above the requirements of clause 19(2)(e) and (f) of the Housing SEPP could not be imposed, as it would be more onerous than the applicable non-discretionary development standards and would therefore offend section 4.15(2) of the Environmental Planning and Assessment Act 1979.

Applicant’s position

Chapter 2, section 19 of the Housing SEPP relates to infill affordable housing and sets non-discretionary development standards that, if met, prevent the consent authority from imposing more onerous standards.

Relevantly, it prescribes minimum parking spaces per dwelling by bedroom count for affordable and non-affordable dwellings. Assuming this is the applicable control, the Applicant was required to provide a minimum of 70 residential parking spaces.

Notably there is no specific reference in section 19 to visitor parking spaces.

In other words, the formulae, once applied, yield a total number of parking spaces that are to be provided for “the residential development to which this division applies”. That is the non-discretionary development standard that applies to such development, and there is no separate calculation indicated, or required, for visitor parking for those dwellings.

The standard also does not distinguish between occupants and visitors, save as to require a higher rate depending on the number of bedrooms for each dwelling. The Council’s contention that section 148 applies was refuted on the basis that section 148 applies to residential flat buildings generally and does not address infill affordable housing.

Accordingly, clauses 19(2)(e) and (f) are the totality of the applicable non-discretionary development standards for the provision of parking spaces under the Housing SEPP.

Council’s position

As indicated above, the Council relied on section 148 of the Housing SEPP as referencing the applicable standard.

The Council relied on section 148 of the Housing SEPP as the applicable standard. In support, it referred to Part 3J of the Apartment Design Guide, which in turn refers to the RTA Guide 2002 (since superseded by the Guide to Transport Impact Assessment 2024 (GTIA)).

On the Council’s approach, the Applicant was required to provide a minimum of 70 residential parking spaces as well as 19 additional visitor parking spaces.

Adopting Council’s view, there is no inconsistency that needs to be resolved in calculating the applicable rate of visitor parking spaces as section 19 is silent in relation to visitor parking and therefore, the rates at s148 for visitor parking apply by default.

Judgment

Ultimately, the Court held that the non‑discretionary development standards within Chapter 2 of the Housing SEPP operate independently and are not intended to be read cumulatively.

In reaching this view, the Court found there was a lack of clear legislative intent for sections 19 and 148 to apply cumulatively. On that basis, clauses 19(2)(e) and (f) are the only applicable non-discretionary standards for the provision of parking spaces.

The Court also confirmed that each housing type such as infill housing, boarding houses, or social housing has its own discrete set of non‑discretionary standards. There is nothing in the instrument which indicates a requirement for each of these separate sections to be read together.

Furthermore, the Court confirmed that if the non‑discretionary standards for infill housing in section 19 were intended to apply in conjunction with the standards in section 148, the Housing SEPP would need to include an explicit cross‑reference.

In summary, the Commissioner accepted the Applicant’s arguments and in doing so held that the proposed development met the applicable non-discretionary development standards for parking as contained in section 19 of the Housing SEPP, and that there was no basis to accept the Council’s argument that the non-discretionary development standards for parking are determined by the combined operation of sections 19(e) and (f) and section 148(2)(a).  To do so would be to increase parking requirements for developments being delivered under the Housing SEPP.

Need advice? If you are proposing, assessing or challenging infill affordable housing and parking outcomes under the Housing SEPP, please contact Bartier Perry’s Planning and Environment team for advice tailored to your project.

Authors: Dennis Loether & Peter Papapostolou 

This publication is intended as a source of information only. No reader should act on any matter without first obtaining professional advice.