While the NSW Planning Department should be commended for pushing the new TOD program through the planning system, the legal drafting of the new policy has created lots of confusion amongst the industry as to whether seniors housing developments in TOD areas actually benefit from the new FSR and height controls.

Under the TOD program, FSR and height improvements are tied it appears to shop-top housing and residential flat building uses. Seniors housing, including independent living units and residential care facilities are separately defined uses under the planning system.

Ongoing debate has existed for years as to whether the typology of independent living units is in fact a residential flat building. If a local council or panel was to accept this, the same consent authority could not extend the definition of residential flat buildings to residential care facilities because this use does not contain dwellings.

An unfortunate reality of the current TOD program is that it is more complicated for independent living units and most definitely excludes residential care facilities. A housekeeping amendment to the Housing SEPP could clarify this confusion.

With TOD program causing a lot of confusion for residential developers attempting to acquire a row of homes in TOD areas, this uncertainty for seniors housing has put the seniors living industry on the sidelines. Clarification on this issue is required urgently, given the overwhelming demand for over 55s accommodation in Sydney. This issue demonstrates the importance of ensuring that the myriad of policy changes designed to accelerate housing supply do not undermine earlier attempts to achieve a similar outcome.