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In recent times there has been some debate in New South Wales about whether or not a complying development certificate can be approved by an accredited certifier for a rumpus room or gymnasium attached to a secondary dwelling “granny flat”.

At the time of writing, the author is awaiting a decision in an NCAT review case where this subject was explored. Expert evidence produced on the certifier’s behalf suggested that the rumpus room / gymnasium could be approved as complying development if it is seen as “appurtenant to” the primary dwelling on the land (ie as an addition to it).

In the case in question, the rumpus room / gymnasium was attached to the secondary dwelling “granny flat” but was also demarcated by a fire rated separating wall from the living area of the granny flat. While the two “uses” shared the same continuous roof structure above, there were different entrances to the granny flat and rumpus room respectively and no connecting doorways between the two.

In prosecuting the accredited certifier, the Building Professionals Board (BPB) argued that a rumpus room or gymnasium is not complying development under the Codes SEPP 2008 where it is attached to a secondary dwelling, so that a complying development certificate should not have been approved. As a result an unsatisfactory professional conduct finding was made against the practitioner.

In making this finding the BPB reasoned that “ancillary development” is not permitted if it is attached to a secondary dwelling pursuant to Clause 3.5(2)(d) of the Codes SEPP 2008. The granny flat and rumpus room were clearly “attached” to each other and not “detached” and the fire rated separating wall could not be proffered as evidence of detached uses (eg a detached studio).

There seems to be broad agreement in the certification industry that a rumpus room is a “habitable room” despite its somewhat specialised use, and that it would not come under a Class 10 Building Code classification. What then is meant by the term “ancillary development”?

Pursuant to Clause 1.5 of the Codes SEPP 2008 “ancillary development” when looked at in the context of the Codes SEPP is defined as any of the following:

(a) access ramp;
(b) awning, blind or canopy;
(c) balcony, deck, patio, pergola, terrace or verandah that is attached to a dwelling house;
(c1) basement;
(d) carport that is attached to a dwelling house;
(d1) detached studio;
(e) driveway, hard stand space, pathway or paving;
(f) fence or screen;
(g) garage that is attached to a dwelling house;
(h) outbuilding;
(i) rainwater tank that is attached to a dwelling house;
(j) retaining wall;
(k) swimming pool or spa pool and child-resistant barrier.

It would appear that rumpus room / gymnasium is not included in the definition of ancillary development for the

purposes of applying the Codes SEPP 2008. In the definition, the closest candidates would be either a detached studio (but that does not meet the facts here) or an outbuilding (unlikely to be applicable).

Whilst the BPB found that ancillary development is not permitted if it is attached to a secondary dwelling, based on Clause 3.5(2)(d) of the Codes SEPP 2008, on the other hand the BPB had also concluded that a rumpus room / gymnasium is development excluded from the “ancillary development” definition in that planning instrument.

Expert evidence called for the accredited certifier posited that the Board’s conclusions were in effect contradictory. This was primarily because, as the expert witness pointed out, the rumpus room / gymnasium was not ancillary development for the purposes of applying the Codes SEPP 2008.

This had been accepted by the BPB and is evident from the failure of Clause 1.5 to include either “rumpus room” or “gymnasium” within the items under the “ancillary development” definition. Therefore the prohibition on ancillary development attached to a secondary dwelling, contained at Clause 3.5(2)(b) of the Codes SEPP, was not activated.

In fact it may be argued that a rumpus room / gymnasium could be “appurtenant to” the primary dwelling, as an addition or alteration to it, rather than appurtenant or ancillary to the (granny flat) secondary dwelling. The phrase “appurtenant to” is a familiar wording commonly adopted in applying the Building Code.

Although the rumpus room was attached to the secondary dwelling and was some distance from the primary dwelling, the accredited certifier’s expert evidence was that there is no requirement in either the Codes SEPP 2008 or the Building Code for all parts of a dwelling to be attached to each other.

In other words different parts of a dwelling house can be detached from each other but still be appurtenant, so as to together provide the necessary components of a dwelling house. If this is indeed so, then the rumpus room could then be assessed for compliance as an alteration or addition under Clause 3.3 of the Codes SEPP.

As for the fire rated separating wall between the granny flat and the rumpus room, this was a necessity to protect occupants of the 2 unrelated uses, consistent with Building Code requirements. If anything, this bolstered the argument that the rumpus was not intended to be ancillary or appurtenant to the secondary dwelling.

Arguably then the fire rated separating wall highlights that the rumpus room is in fact appurtenant to the primary dwelling and not the granny flat, because such separation would only be needed between unrelated occupancies.

To reiterate, the above arguments are yet to be confirmed by the NCAT, however the discussion serves to illustrate the following points for consideration by accredited certifiers:

(i) Caution should be adopted when applying the Codes SEPP 2008 or the Affordable Rental Housing SEPP in the course of assessing complying development certificates that relate to secondary dwellings; and

(ii) There can be differing technical interpretations when applying these planning instruments and the definitions of “ancillary development” and “appurtenant”, amongst other technical phrases or terms.

For expert legal advice or assistance in regard to compliance, the EP&A Act 1979 and Regulations, or any civil disputes involving accredited certifiers, you should not hesitate to seek legal advice promptly from experts in this field.

For more information and assistance, please contact Lovegrove & Cotton, Lawyers
www.lclawyers.com.au