COMPLYING DEVELOPEMNT CERTIFICATES FOR SECONDARY DWELLINGS CAN SPELL PROBLEMS FOR NSW ACCREDITED CERTIFIERS
By Justin Cotton, Director, Lovegrove Smith & Cotton Pty Ltd, Construction and Commercial Lawyers
A common source for complaint investigation in NSW involving private certifiers is the vexed area of the issuing of Complying Development Certificates (CDCs).
An accredited certifier operating in this space needs to tread warily, and indeed, it may be wise to voluntarily seek peer review (of for example a town planner) prior to approval of Complying Development Certificates that do not appear to be straight forward. If in doubt, it is best not to approve, or seek more information or clarification.
Two relevant planning instruments for this exercise are the State Environmental Planning Policy (Exempt & Complying Development Codes) 2008 (“the Codes SEPP”) and the SEPP (Affordable Rental Housing) 2009 (“the Affordable Housing SEPP”). If a CDC is granted, then it takes the place of having to proceed down the Development Consent and Construction Certificate route, so it is highly beneficial to an Owner if a CDC application is approved.
It goes without saying that an Accredited Certifier should only approve an application for a CDC that is in accordance with the development standards in the applicable Planning Instrument, and if the design will meet the building standards set out in the Building Code.
One point of contention that we are seeing fairly regularly in NSW is the matter of CDCs issued for secondary dwellings, for example a “granny flat” built on the rear of land behind the principle or “primary” home. If caution is not exercised before approving a CDC, a complaint could arise that what was approved is not really “complying development”, and the Certifier could find themselves having to provide submissions in their defence to the Building Professionals Board.
Clause 23(3) of the Affordable Housing SEPP specifies that if a secondary dwelling is to be built at the same time as the principle dwelling, the building of both dwellings and any “ancillary” development on the lot may be carried out as a single complying development if the matters in sub-clauses (a) and (b) are satisfied, that is:
(a) the building of the secondary dwelling can be carried out as complying development under this Division (of the Affordable Housing SEPP); and
(b) the building of the principal dwelling and any ancillary development can be carried out as complying development under State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.
This reference to the Codes SEPP at sub-clause (b) shows that the two planning instruments are to be utilised in tandem in this scenario where the principle and secondary dwellings are to be constructed together at the same time and regarded as a single complying development. The plans submitted with the application for the principal dwelling should be assessed against the Codes SEPP and the plans for the secondary dwelling against the Affordable Housing SEPP standards.
Clause 23(4) of Affordable Housing SEPP goes on to state that: “In determining whether a principal dwelling (when built at the same time as a secondary dwelling) can be carried out as complying development under [the Codes SEPP] the secondary dwelling is not to be taken into account.”
However it would appear that this relates to the consideration of whether the principal dwelling meets the required standards under the Codes SEPP, and does not necessarily mean when both dwellings are considered together, they will pass the test of being ‘complying development’.
While secondary dwellings cannot be approved as complying development under the Codes SEPP, they can be approved as such under the Affordable Housing SEPP, provided that they meet the relevant criteria under that planning instrument.
One of the key criteria relates to maximum floor area. Pursuant to Schedule 1 of Clause 4(1) of the Affordable Housing SEPP, there is a floor area limit of 60 m2 for a secondary dwelling. Therefore caution needs to be exercised by the Certifier in checking the plans with any CDC application to ensure the designed floor area does not exceed the maximum allowed.
Also relevant, is the fact that the Affordable Housing SEPP does not make provision for the construction of ancillary development to a secondary dwelling. Ancillary development is however defined at Clause 1.5 of the Codes SEPP and includes such items as:
- access ramps;
- awnings, blinds or canopies;
- balconies, decks, patios, pergolas, terraces, verandahs;
- carports attached to the home;
- detached studios;
- driveways, pathways or paving;
- fences or screens;
- garages attached to the home;
- rainwater tanks attached to the home;
- retaining walls;
- swimming pools / spas and the pool barrier.
The term “outbuilding” is also defined in the Codes SEPP as is the term “detached”. Any development to be considered as properly ancillary must meet the requirements of the definitions that are applicable.
Also, because the Affordable Housing SEPP does not allow for the construction of ancillary development as complying development, then in order for a CDC to be approved, the structure can only be ancillary to a principal dwelling and not to the secondary dwelling.
Such structures or new rooms as a rumpus room or gym can prove problematic, because for example a “rumpus room” does not fall within the definition of “outbuilding”. It is likely to be regarded as a habitable room and in order to be seen as complying development, the only possibility could be to argue that it is an alteration or addition to the principal dwelling (not the secondary dwelling). The above conclusion is not automatic; there are grey areas which make CDCs a difficult area for Certifiers.
If structures are wrongfully approved as complying development, it can mean that such items as maximum floor area are exceeded, which in turn affects the appropriate classification of the building under the Building Code.
For example, if a building is wrongly classified as Class 1a as a single dwelling house, in circumstances where the building should have been given a Class 2 categorisation, then there is every chance that the higher minimum standards under the Building Code (for Class 2) have not been met in the design.
As just one example of this, a Class 2 building would require a fire safety schedule, whereas a CDC for a Class 1a structure would not need a fire safety schedule attached to it.
If in doubt about your rights and responsibilities in this area of law, or if faced with an actual or potential complaint or investigation, you should seek prompt advice from legal experts practiced in construction law.