Forums / Property Investing / General Property / WARNING: Dual Living/ Granny Flat unapproved Duplexes- Brisbane City Council Enforcement Notices

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  • Profile photo of chrispow88chrispow88
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    Hi,

    I am looking at a property in the Logan Council area (Qld) does anyone know if the same true for that area?

    Thanks

    Profile photo of RPIRPI
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    Afraid so.  Must be used by a household group.  Table 5.2.16 of the planning scheme from memory.

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    Profile photo of SeanWilsonSeanWilson
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    Hi Darryl,

    We have actually found that the crux of this issue is in the definition of the term 'household'.

    For contrast, here is the exact same term as provided by the Logan City Council: 'An individual or a group of two or more related or unrelated people'.

    The amazing thing is that after receiving a 'show cause notice' we spoke to some council town planners who noted that the only way to lease out two areas on the same block of land and still comply with the planning act of the LCC is to have the secondary area classed as an 'annexed unit'. Which is a pretty straight forward process.

    So for any property investors out there, I would be getting out of the BCC areas and hopping across (sometimes its a matter of walking across a road) to the LCC areas.

    Just a thought to take into consideration.

    Sean.

    Profile photo of RPIRPI
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    Interesting,

    Logan City Council planning scheme states that an annexed unit must be used by the one household .  Table 5.5.16 s1.1 (f).

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    Profile photo of XeryusXeryus
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    Pop over to Ipswich, 65sqm max, can rent out to non family members..

    Profile photo of PlicketPlicket
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    What about if you built in under your home a 1 bedroom self contained apartment with a kitchenette, bathroom, separate entrance but had a door at the bottom of the internal stairs that connected it to the rest of the house. This little apartment would be for adult children and their families when they visited.  When they were not there however the area would be rented out on airbnb for a nightly rate.   Is that legal in the BCC area?

    Profile photo of RPIRPI
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    You would need to get a material change of use for short stay accommodation to make it legal.

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    Profile photo of OzmanOzman
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    Thanks for that update Simon

    We have a contract on a property with a detached  Unit / Granny flat so might make it a better deal.

    Profile photo of RPIRPI
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    Profile photo of James1695James1695
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    Pro town planners seem to be using information supplied to them by the enforcement team rather than actually reading the town plan.  The Enforcement team in BCC have been making up their own definitions and town plan and then going out and trying to enforce it.  A series of enforcement notices went sent out to unsuspecting landlords based on these made up definitions, these were subsequently challenged and won in a number of tribunals and courts.  The AAD case refered to was to determine if you could lease to 12 people in one house, they lost because the current maximum in the town plan is upto 5 unrelated people.  Also as any person who is suitably qualified will tell you the decision in a court case is only relevant to that case, it does not have any effect on changing the town plan for other unrelated cases which have completely different situations.  What the Council enforcement team has tried to do is create its own interpertaion of the case and create a new set of laws from it to which only they know what they are.  These new laws aren't written anywhere and if you ask them they wont send you a copy.  Also the lawful use of a property cannot be changed retrospectively, the lawful use never changes once the property is completed – refer to the Sustainable Planning Act Qld Section 628 (2a).  In their new law a house can only be occupied by a family or something similar, however what the town plan actually says is than upto 5 unrelated persons can occupy a house lawfully.  There is no limit on who they are, how they lease, what they eat or what rooms they occupy.    https://www.legislation.qld.gov.au/LEGISLTN/CURRENT/S/SustPlanA09.pdf

    The enforcement notices Pro town planners refered to here are now being canceled by council as it was council who has acted outside the law when issuing them.  The best advice i can give is beware of advice posted on the internet.  While there are some people within council who have a political agenda to try to stop renting houses out to groups other than families this does not make it the law.  The irony of these cases is that the Lord Mayor Graham Quirk was in china 2 weeks ago promoting Chinese university students to come to Brisbane and live in Share Houses, he was doing this with The PAD student housing agents who only have tenants who lease individually and share houses.  If this use is unlawful why would the Lord Mayor promote it.  The problem is the council is a large organisation and does not always talk to itself.  I would not do business with Pro Town Planner as they seem to be a puppet of the councils enforcement team and troll for work  by spreading their propaganda.

    http://www.thepad.com.au/news/asia-pacific-cities-summit

    There has also been some suggestion that the new town plan will also stop the ability of people to share houses by having their own leases.  Given the current wording this will be the case if the new city plan is passed un amended.  however every industry body and political group are lobbying for this to be changed.  The main reason is that Houses that are shared are the back bone of Affordable Housing.  Without houses that can be shared by unrelated individuals we would have a housing crisis of epic proportions, and the city councils know this.  Which is why every other city council in the state is currently updating the town plans to promote more of this type of use, except Brisbane City Council for some reason the people in power there seem heel bent on reducing the supply of affordable housing.  That is what this is all really about, the council has been out trying to implement its new policies early before they have been passed.  i would suggest if you have properties you would like to rent this way or have an interest in preserving the current status quo talk to your local councilor or politician because these laws face the possibility of being changed if they are allowed to have their way.

    Profile photo of HPropertyHProperty
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    Just an update on things here……BCC are currently in the process of withdrawing these enforcement notices.  Hooray for common sense!

    I'm the owner of a primary/secondary dwelling in Brisbane and was issued with one of these council enforcement notices at the beginning of this year.  Both dwellings are leased on their own lease agreement.

    I appealed the enforcement notice to the Planning and Environment Court as I did not believe BCC had any basis for their actions.  Brisbane's City Plan 2000 House Code specifies that 5 unrelated people can constitute a household group and it does not specify anything about lease agreements.

    To date council have not been able to provide a brief for my case, and then this week have communicated that they will be withdrawing the enforcement notice.

    After being through the process, I have learnt a lot and I cannot agree with a number of things in your assessment here.

    BCC do not view my property as a multi-unit dwelling and they have stated this in the legal documents relating to my case.  So your conclusion that the decision of the AAD Design case makes the property a multi unit dwelling is incorrect.

    To take this issue through to court based upon leases would also prove to be VERY embarrassing for council as they are actively promoting student rooming accommodation at the present time.

    If you are still representing owners with enforcement notices over their primary / secondary dwellings, I'd be asking BCC to withdraw them like they are doing with mine.

    Regards,

    Simon.

    Profile photo of myanglemyangle
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    Hi Darryl.

    I have a place in the BCC that is rented out.

    It was originally a 3×1 and it has been filled in underneath to make 3 additional rooms (bedrooms), a bathroom, as well as a living area and kitchenette. There are no internal stairs. The ceiling is less than the minimum habitable height. When I purchased it about 1 year ago it was rented out to 2 individual parties even though there are no approvals for dual occupancy. the zoning is LR.

    I have removed one lot of tennants and will rent it to one party from now on, on a single lease agreement.

    My question is: what do I need to do to make the arrangement all legal? there has been additional plumbing installed to downstairs for the bathroom at some stage and council records do not reflect this. There is a gas cooktop in the kitchen but no oven.

    I was told I need to remove the gas cooktop so that it becomes a wet-bar.

    Can somebody advise the documents that describes the legislation for what I am referring to?

    Many thanks

    Brian

    Profile photo of RPIRPI
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    Brian

    Without minimum ceiling height being achieved you are not going to comply with the Building Code of Australia.  You can have lower projections into the height in places, eg where beams/ bearers are.  Is it possible that you raise the ceiling height by putting the sheeting directly onto the floor joists above and then boxing around the bearers?

    Is it on a small lot?  This makes a difference to a possible future outcome in the case I was talking about above.

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    Profile photo of RPIRPI
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    The first proceedings in Court between Council and property owners have now resolved on this matter so I now feel comfortable commenting.

    I can confirm that I acted as the Lawyer for many clients in appeals against Enforcement Notices issued by the Council for non-compliance with the House Code (renting of secondary dwellings to a separate household) .  We were successful in getting a large costs order from the Council but it was really only a tactical retreat by Council.

    The Council issued these Enforcement Notices within their legal authority to do so and while there maybe some technical or evidentiary issues with some of the notices, the Council and their legal team maintains their interpretation that is unlawful to rent primary and secondary dwellings to separate parties remains.

    Council has withdrawn Enforcement notices as a tactical move to enable them to run an Originating Application in a superior court.  They are doing this so that, rather than an individual enforcement notice being able to be beaten on appeal due to a technicality, they can get a superior court ruling that this sort of use is unlawful.  My estimation is that they have spent up to $200,000 in legal fees on this matter to this stage, and these costs are going to increase substantially for the Originating Application.  They have a Queens Counsel and a Junior Counsel briefed to prepare and run the OA.  They have spent a large amount of resources on preparation and evidence gathering.  This matter is one the Council feels very strongly about and all the indications are that they will spend whatever it takes to stop these uses.

    We have an argument to make that the use of these properties is lawful and  I think we have a reasonable chance of success of arguing this in Court but it is going to be an expensive process.  Fortunately with us having numerous clients they can at least share the costs between them.  Hopefully  for our existing clients we pick up some more clients to defend the OA as we split the costs between all the clients, more we have they cheaper it is for them.  

    However, if the Council wins their OA, it appears that they intend to issues an enormous number of Enforcement Notices and that any of these subsequent Enforcement Notices that were overturned on Appeal due to evidentiary or technical issues would simply be replaced by new ones.   

    This is not going to go away and I would be loathe to purchase a property in a BCC low density residential area that is rented to separate household groups. 

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    Profile photo of Brisbane NickBrisbane Nick
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    Your information on here has been invaluable.

    I'm currently renovating my house to fit the five of us. We've designed the house with three future teenagers in mind, so we can stick them way down the other end from the parents. 

    In the meantime, we will be having an au pair who wouldn't be paying rent but I would assume wouldn't be considered 'related'.

    I'm sorry for asking what seems like a silly question, but would this mean we can't have this sixth person?

    On top of the au pair, would it not be then okay to rent out one room to a student (I'm not talking separate kitchen or other granny related features here).

    I know these aren't technically investing questions. I'm not trying to skirt around council but I find their rules and regulations impenetrable and I find it weird that if we had one child or two, the above scenarios would be unquestionably allowed.

    Thanks for any help you could give.

    Nick

    Profile photo of HPropertyHProperty
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    Hi Xeryus,

    You might want to check with Ipswich CC now that new QPP definitions have been introduced for Household, Dwelling House and Dual Occupancy.  It may have just become unlawful.

    Profile photo of HPropertyHProperty
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    You might want to check out the new Queensland State Planning Provisions that came into effect late last year.

    They define "Household" as:-

    "An individual or a group of two or more related or unrelated people who reside in the dwelling, with the common intention to live together on a longterm basis and who make common provision for food or other essentials for living."

    They then go on to define dwelling house, dual occupancy and multiple dwelling around this definition of "Household":-

    • "Dwelling house – A residential use of premises for one household that contains a single dwelling. The use includes out-buildings and works normally associated with a dwelling and may include a secondary dwelling"
    • "Dual occupancy – Premises containing two dwellings on one lot (whether or not attached) for separate households."
    • "Multiple dwelling – Premises containing three or more dwellings for separate households."

    So a property is being defined based on it's use, rather than on physical attributes of the building itself, and it requires the occupants of a house to eat together and/or share essentials for living (whatever they are classed as).

    Prior to the new definitions, you were classed as a house under the Brisbane City Plan 2000 if you had no more than 5 unrelated occupants ; There were no other restrictions or limitations, so you could in fact rent a granny flat.

    Brisbane City Council is adopting these new definitions in it's new Brisbane City Plan 2014, and it appears that the Enforcement Action has only started appearing since the draft plan was in review with BCC Councilors.

    The implications for those Qld councils (eg. Ipswich, Logan etc.) that promote granny flats for separate rentals is unknown.  eg. Ipswich Planning Scheme current distinguishes between an annexed unit and a dual occupancy by physical characteristics of the building (ie. the size of the "granny flat").  Less than 65m2 and it's an annexed unit whereas greater than 65m2 is a dual occupancy.  Now that there are conflicting definitions at a State level, is this allowed, or is it not?

    Also, I believe that the "household" change will even see granny being unlawful if she lives independently in the granny flat (eg. cooks her own meals and pays her own bills) or is not expected to live long.  It seems an application for a "Dual Occupancy would be required".   Oh, and did I mention that to get approval for a dual occupancy under the new Brisbane City Plan 2014 you need 3000m2 in normal residential zoning?  

    Brisbane City Council appears to have been actively trying to retrospectively apply these new definitions on existing properties across Brisbane.  This seems to be why they have been issuing the Enforcement Notices and why they have only started appearing when the new Brisbane City Plan 2014 was being drafted (and not anytime over the last decade of the 2000 City Plan).

    Brisbane City Council should be ashamed of the actions they have taken here!

    Profile photo of HPropertyHProperty
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    Hi Darryl,

    Any more word on this so called "Originating Application" that Brisbane City Council is supposedly doing?

    I heard that it was to be completed last August/September 2013, but there's been nothing.  I get the impression that this was just further rubbish that BCC was feeding people in order to cast doubt over the granny flat issue.

    Noone at BCC seems prepared to talk about the issue anymore ; they are just hoping it all goes away.

    Have you heard of any news?

    Regards,

    Simon.

    Profile photo of RPIRPI
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    Hi Simon

    My understanding is that, as they are taking no chances this time, they have collected an enormous amount of information on the test properties.  The folders fill half a room.  The legal team putting it together for the Barristers is quite small so they are taking a long time to get through the data and put it into a brief.

    regards

    Darryl

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    Profile photo of HPropertyHProperty
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    So a quick summary of this issue is:-

    BCC has had 2 barristers working for over 6 months or more to amass half a room full of documents, in an attempt to enforce an 'opinion' regarding a City Plan that is about to be superseded. That 'opinion' contradicts that of the principle author if the City Plan (as well as their own rates department), and is one which they have already lost numerous times in court appeals. 

    Furthermore, if BCC happens to be successful in convincing a higher court of their 'opinion', and if they are able to retrospectively apply the decision to existing properties, it will result in mass evictions across Brisbane of granny flats, student accommodation, rooming accommodation and dual occupancy properties.

    Well done Brisbane City Council!

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