Ancillary accommodation and accepted dwellings: amendments to the Planning, Development and Infrastructure (General) Regulations 2017

Recent amendments to the Planning, Development and Infrastructure (General) Regulations 2017 (General Regulations) seek to address current and contentious issues in the planning regime regarding housing affordability and supply.

The Planning, Development and Infrastructure (General) (Ancillary Accommodation and Schedule 6A) Amendment Regulations 2023 (Amendment Regulations), gazetted on 16 November 2023 and available here (at page 3897), introduce two substantial amendments to the operation of the existing General Regulations by:

1. restricting the operation of the offence provision under Section 215(4) of the Planning, Development and Infrastructure Act 2016 (Act) as it applies to conditions constraining the use of ancillary accommodation; and
2. modifying the circumstances in which a detached dwelling can be considered a form of accepted development and therefore exempt from a requirement for planning consent (pursuant to Section 104 of the Act).

These amendments introduce material considerations for enforcement and assessment of residential development under the Act.

Ancillary accommodation

The amendments to regulation 3A of the General Regulations modify the application of the Act (pursuant to Section 8 of the Act) in respect of contraventions under Section 215.

The previous regulations 3A(3a) and (4) contained a ‘carve-out’ provision for compliance with conditions on a development authorisation with respect to restrictions on operating hours for ‘a shop used primarily for sale of foodstuffs by retail’. Those regulations were introduced as a measure to address the supply chain and operational constraints presented by COVID-19 restrictions, the consequence being that a person could breach any such conditions restricting the hours of operation and not be held in contravention of Section 215(4) the Act.

Pursuant to the Amendment Regulations, those regulations 3A(3a) and (4) are now repealed and replaced by the new regulation 3A(4) which prescribes that:

• Pursuant to section 8(2)(b) of the Act, section 215 of the Act applies with the following prescribed variation:

Section 215—after subsection (4) insert:

Subsection (4) does not apply to prevent a person who owns ancillary accommodation from entering into an agreement for the residential occupation of the ancillary accommodation (such as a residential tenancy agreement or rooming house agreement (both within the meaning of the Residential Tenancies Act 1995)) with a person who is not a resident, or associated with a resident, of the dwelling in respect of which the accommodation is ancillary, or with any other person.

(Our emphasis)

The new regulation 3A(5) then prescribes that ancillary accommodation is given the same meaning as under the Planning and Design Code, being:

accommodation that:

• is located on the same allotment as an existing dwelling; and

• is not a self-contained residence; and

• contains no more than 2 bedrooms or rooms or areas capable of being used as a bedroom; and

• is subordinate to and does not have separate connection to utilities and services (such as electricity, gas, water, telecommunications, sewerage system, wastewater system or waste control system) to those servicing the existing dwelling.

This definition describes what might be more commonly known as a ‘granny flat’; that is, a habitable building subordinate to a main dwelling that is not a dwelling in its own right.

The effect of this amendment is that, even where a condition has been imposed on a development authorisation for ancillary accommodation that attempts to restrict its occupancy (for instance, to a relative or associate of the resident of the existing dwelling), any breach of such condition is not held to be a contravention under section 215 of the Act. This amendment therefore authorises the residential leasing of ancillary accommodation where it might otherwise have been unlawful to do so.

Of note, recent amendments to Practice Direction 12 further prevent relevant authorities from imposing new conditions to this effect in respect of applications for ancillary accommodation. This is explored in greater detail in our article here.

Accepted development (dwellings in certain zones)

A previous amendment to Schedule 6A of the General Regulations introduced in August this year (clause 3) prescribes that detached dwellings in certain zones are to be classified as accepted development subject to meeting certain quantitative requirements.

This clause exempts any applications for such dwellings from having to obtain planning consent pursuant to the Act, the result being that only building consent is required in order for those dwellings to be granted development approval.

Those prescribed requirements under clause 3 have been further modified by the Amendment Regulations. Notable amendments include (non-exhaustively):

1. a ‘carve-out’ for detached dwelling applications where a building envelope plan (under regulation 19A(5) of the General Regulations) applies to the development site, such that the approved building envelope plan prevails;
2. confining the applicable applications to existing allotments (only) rather than also including “an allotment granted a development authorisation under the Act”;
3. insertion of a number of new, largely quantitative requirements for setbacks, finished floor levels, window location, driveway widths and location, garage siting, and vehicle access.

These amendments appear to be aimed towards providing a more rigid (and arguably more restrictive) framework for qualifying dwelling applications under this Schedule.

Considerations for relevant authorities and local government

The introduction of broad ‘carve-out’ provisions, in this case both from enforcement provisions and the general application of the planning rules, presents a challenge for councils to accommodate in their administration of the Act. Councils and relevant authorities should remain alert to the exceptions to the general principles introduced by the Amendment Regulations.

We encourage planners and compliance officers to seek advice in relation to the effect of these amendments and the broader consequences which arise.

For more specific information on any of the material contained in this article please contact Gavin Leydon or +61 8 8210 1225 or gleydon@normans.com.au, or Nicholas Munday on +61 8 8217 1381 or nmunday@normans.com.au.