State Environmental Planning Policy (Affordable Rental Housing) 2009
Part 3 Retention of existing affordable rental housing
Note.Development that would otherwise be complying development cannot be carried out in relation to low-rental dwellings or low-rental residential buildings. (See clause 1.4A of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.)
(1) In this Part:comparable accommodation means accommodation that is comparable with the accommodation provided within the premises the subject of a development application to which this Part applies in that:(a) it is similar in location because it is in the same or a neighbouring suburb, and(b) it is at the same rental level, or is not more than 5 per cent higher than that level, and(c) it is available for occupation at the date of lodgment of the development application, and(d) in the case of residential flat buildings, comprises dwellings with the same number of bedrooms as the dwellings in the premises the subject of the development application.guidelines means the Guidelines for the Retention of Existing Affordable Rental Housing, approved by the Director-General and published in the Gazette.low-rental dwelling means a dwelling that (at any time in the 24 month period prior to the lodgment of a development application to which this Part applies) was let at a rental not exceeding the median rental level for that time (as specified in the Rent and Sales Report) in relation to a dwelling of the same type, having the same number of bedrooms and located in the same local government area.low-rental residential building means a building used as a residential flat building containing a low-rental dwelling or as a boarding house and includes a building:(a) that, at the time of lodgment of a development application to which this Part applies, is lawfully used as a residential flat building containing a low-rental dwelling or as a boarding house, irrespective of the purpose for which the building may have been erected, or(b) that was used as a residential flat building containing a low-rental dwelling or as a boarding house but that use has been changed unlawfully to another use, or(c) that is vacant, but the last significant use of which was as a residential flat building containing a low-rental dwelling or as a boarding house.Rent and Sales Report means the Rent and Sales Report published by the Department of Human Services or a publication issued in place of that publication by or on behalf of the Government.(2) In this Part, a very low income household, low income household or moderate income household is taken to include a household that occupies a low-rental dwelling or a boarding room in a boarding house.
48 Land to which Part applies
This Part applies to land within the Sydney region and land within the local government area of Newcastle or Wollongong City.
49 Buildings to which Part applies
(1) This Part applies only to those buildings that were low-rental residential buildings as at 28 January 2000, and does not apply to any building that becomes a low-rental residential building after that date.(2) This Part does not apply to a building:(a) that has been approved for subdivision under the Strata Schemes (Freehold Development) Act 1973, or(b) to which State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 applies, or(c) owned by, or under the care, control and management of, a social housing provider.
50 Reduction of availability of affordable housing
(1) A person must not do any of the following in relation to a building to which this Part applies except with development consent:(a) demolish the building,(b) alter or add to the structure or fabric of the inside or outside of the building,(c) change the use of the building to another use (including, in particular, a change of use to backpackers accommodation),(d) if the building is a residential flat building, strata subdivide the building.(2) In determining a development application referred to in subclause (1), the consent authority is to take into account the guidelines and each of the following:(a) whether there is likely to be a reduction in affordable housing on the land to which the application relates,(b) whether there is available sufficient comparable accommodation to satisfy the demand for such accommodation,(c) whether the development is likely to cause adverse social and economic effects on the general community,(d) whether adequate arrangements have been made to assist the residents (if any) of the building likely to be displaced to find alternative comparable accommodation,(e) the extent to which the development contributes to any cumulative loss of affordable housing in the local government area,(f) the structural soundness of the building, the extent to which the building complies with any relevant fire safety requirements and the estimated cost of carrying out work necessary to ensure the structural soundness of the building and the compliance of the building with the fire safety requirements,(g) whether the imposition of a condition requiring the payment of a monetary contribution for the purposes of affordable housing would adequately mitigate the reduction of affordable housing resulting from the development,(h) in the case of a boarding house, the financial viability of the continued use of the boarding house.(3) For the purposes of subclause (2) (b), sufficient comparable accommodation is conclusively taken to be not available if the average vacancy rate in private rental accommodation for Sydney as published monthly by the Real Estate Institute of New South Wales is, for the 3 months immediately preceding the date of lodgment of the development application, less than 3 per cent.(4) For the purposes of subclause (2) (h), the continued use of a boarding house is financially viable if the rental yield of the boarding house determined under clause 51 (5) not less than 6 per cent.
51 Contributions for affordable housing
(1) For the purposes of section 94F (1) of the Act, this Policy identifies a need for affordable housing on land within the Sydney region and on land within the local government area of Newcastle or Wollongong City.(2) For the purposes of section 94F (3) (b) of the Act, this Policy authorises a condition to be imposed under section 94F of the Act if:(a) the consent authority, when determining a development application referred to in clause 50 (1), is satisfied that the proposed development will or is likely to reduce the availability of affordable housing within the area, and(b) the condition is imposed in accordance with the scheme for dedications or contributions set out in subclauses (3) and (4).(3) If a condition is to be imposed under this clause, the amount of the contribution is to be calculated in accordance with the following formula:
where:C is the contribution payable.L is the total number of bedrooms in a low-rental dwelling and boarding rooms that will be lost by the proposed development.R is the replacement cost calculated as the average value of the first quartile of sales of strata properties in the local government area in which the development is to take place, as specified in the 4 most recent editions of the Rent and Sales Report.(4) Despite subclause (3), where the development application relates to a boarding house that the consent authority has assessed as not being financially viable:(a) if the rental yield is 3 per cent or less, no contribution can be sought, and(b) if the rental yield is more than 3 per cent and less than 6 per cent, the contribution payable is to be reduced by being calculated in accordance with the following formula:
where:C is the contribution payable.X is the contribution that would be payable under subclause (3).RY is the rental yield.(5) In this clause:rental yield means the rental yield for a period (expressed as a percentage) determined by the consent authority in accordance with the following formula and taking into account the guidelines:
where:RY in the rental yield.Y is the gross rental income from the boarding house for the period.E is the total expenses for the boarding house (excluding expenses that have been charged to lodgers) for the period.D is the capital depreciation of the boarding house for the period.V is the total value of the boarding house were it to be purchased for the purposes of continuing its use as a boarding house.U is the estimated cost or carrying out work as determined under clause 50 (2) (f).