I recently visited a friend in northern NSW. As is often the case these days, discussion pretty quickly turned to the subject of local government, and the ‘useless local council’.
My friend was most aggrieved that he had bought a property that was ‘fully approved’, but when he wanted to open a bed and breakfast business, he was required to make extensive changes to things that he had been advised previously conformed to all relevant regulations.
There are several factors that come into play in situations like this.
First, there was the obvious matter of a change of use, from a Dwelling house to Bed and breakfast accommodation. The fact that a building might satisfy the regulatory requirements for, and be ‘fully approved’ as a private dwelling does not necessarily mean that it would also satisfy the regulations that apply to, or even be fit for purpose with regard to a commercial enterprise, even one such as that being proposed.
In the present case, one significant issue was a requirement to improve access and clear adjacent vegetation to comply with RFS conditions for tourist accommodation. From a safety point of view, there is generally considered to be a significant difference between the local knowledge of a property owner, and that of a visitor, in the present case potentially entirely unfamiliar with local weather and fire conditions.
The second issue in the present case was the proximity of the absorption trench for the septic system and a bore that was being used to supply potable water to the site. The problem here was that conditions relating to the required separation of these two items had changed since they were originally approved. While this was not a problem for the continued use of the dwelling for its original purpose, the new development was required to satisfy the currently applicable conditions. In the present case, this effectively meant the installation of a new septic system, in a location that satisfied the current separation requirements.
In general, new planning regulations don’t render existing lawful developments illegal and don’t require further development consent to be obtained. When regulations change, existing developments are generally covered by what are called ‘existing use rights’, which simply means that if a development was legitimate at the time it was commenced, it remains legitimate, as it is, even though new regulations may prohibit or impose new conditions on such developments. Of course, if the development was not undertaken legally in the first place, with appropriate approvals and permits (if required), it will not have any existing use rights.
In seeking development approval to change the use of a building, however, the owner will generally need to satisfy the conditions that apply to that new use at the time their development application is lodged, regardless of whether or not these were applicable when the building was first constructed and approved for its original use.
If you have any concerns or queries relating to regulations governing a specific development, or any development in fact, council’s planning staff are there to help. It doesn’t cost anything to ask, and it could save a great deal of frustration or disappointment.
Pete Harrison ~ The QPR Blog cross-reference
26 August 2019 @ 12:04
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