Court confirms no visitor parking required for affordable housing

Court confirms no visitor parking required for affordable housing.

Written by Polida Sek

A recent decision of the Land and Environment Court in Kogarah Investments No 1 Pty Ltd v Georges River Council [2026] NSWLEC 1048 (‘Kogarah Investments’) provides useful clarification on how overlapping development standards are to be interpreted under the State Environmental Planning Policy (Housing) 2021 (‘Housing SEPP’), particularly in relation to parking requirements for affordable housing.

In the matter of Kogarah Investments, the applicant sought consent for alterations and additions to a previously approved residential flat building that incorporated an affordable housing component. The proposal complied with the parking rates prescribed specifically for affordable housing under section 19 of the Housing SEPP. However, it did not satisfy the additional visitor parking requirements that would ordinarily apply to residential flat buildings under the more general provisions in section 148 of the same instrument.

The applicant argued that there was a conflict between the car parking requirements in section 19 relating to affordable housing, and those in section 148 relating to residential flat buildings. Conversely, Georges River Council took the view that the two provisions were not in conflict, because section 19 did not specify requirements for visitor parking.

The central issue for determination was which provision of the Housing SEPP governed parking requirements, specifically, whether the visitor parking rates under the general apartment development standards in section 148 were to be applied in addition to the affordable housing parking standards in section 19.

Section 19 of the Housing SEPP sets out provisions for affordable housing, including specific non-discretionary development standards for parking. By contrast, section 148 also contains non-discretionary standards, but these apply more broadly to residential flat buildings.

The Court held that there was a conflict between the two sections, and the specific non-discretionary standards applicable to affordable housing prevail over the broader apartment development standards. As the applicant had satisfied the parking requirements in s 19, it was not necessary to comply with the visitor parking requirements in s 148.

In reaching this conclusion, Commissioner Dickson emphasised the structure of the Housing SEPP, noting that it contains discrete chapters addressing different forms of housing, each with its own set of non-discretionary standards. The Commissioner observed that there were no provisions requiring these separate parts of the instrument to be read cumulatively, stating at [66] that “there are no provisions in SEPP Housing that overtly require these disparate parts of the instrument to be read together.”

Accordingly, the Court found that, even though section 19 does not impose a requirement for visitor parking, such a requirement cannot be imported from the general apartment provisions in section 148. Nor can conditions of consent be used to achieve that outcome, as this would undermine the statutory framework established by the Housing SEPP.

The absence of a visitor parking requirement in section 19 was treated as deliberate, reflecting a policy choice to reduce parking burdens for affordable housing developments.

The decision confirms that, where overlapping development standards arise under the Housing SEPP, provisions specifically tailored to a particular form of development will prevail over more general controls.

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