The QPR Blog

Long-time followers of my ramblings may recognise this subject from years gone by. Interestingly, it last came up in the context of the development of the Palerang LEP and so it is that it comes to the fore again as the new consolidated Queanbeyan-Palerang LEP is being finalised.

The Standard Instrument (SI) Local Environmental Plan (LEP) dictionary defines both of the subject entities as types of residential accommodation, meaning a building or place used predominantly as a place of residence. The difference between the two, how they are controlled from a planning perspective, depends to some extent on the way that respective provisions are described in the applicable council LEP. Regardless, a property owner will usually be allowed at most one such development (either/or) on a lot before matters take on a commercial dimension and additional approvals come into play.

Dual occupancy developments are not uncommon in our rural residential areas. Back when these areas were first settled, it was not unusual for a property owner to build a modest structure and live on-site while building their ultimate residence. The original structure was then often rented out to provide additional income, or used as a dwelling by other (older or younger) family members.

Unfortunately, because dual occupancy developments often involve detached structures, the more so when these are well separated, there is a subsequent expectation that one should be able to subdivide the property in question. Councils then come under pressure to approve these subdivisions, regardless of whether or not the resulting lots would satisfy the prevailing minimum lot size or other relevant local provisions—the two structures are there already, occupied, so why does it matter if there’s a property boundary between them or not?

Leaving aside that not insignificant issue for the moment, a secondary dwelling, while still self-contained, as its name implies has a more explicit [legal] relationship with the principal dwelling on a property—the hiving off of a secondary dwelling through subdivision is explicitly prohibited whereas the subdivision of a dual occupancy development is entirely legitimate provided the resulting lots satisfy the relevant planning provisions in their own right.

The real problem in the present context, however, is the floor area of the proposed second dwelling, be it a dual occupancy or secondary dwelling. In providing a set template for all LEPs in NSW, the SI is quite restrictive in the way it requires floor area controls to be specified. If floor area is to be restricted (it need not be, but it usually is) the SI allows only for the specification of either a fixed size or a size of one dwelling relative to the other. As a result, the current PLEP does not impose a floor area restriction on a dual occupancy development (for reasons pursuant to comments below), but the floor area restriction on a secondary dwelling is given as the larger of:

1. (a) 60 square metres, or
2. (b) 33% of the total floor area of the principal dwelling

Under the draft QPLEP, it is proposed that dual occupancy developments will no longer be permitted outside of the urban areas (which include towns and villages). In conjunction with the introduction of this restriction, the floor area restriction on secondary dwellings has been relaxed slightly to 50% of the total floor area of the principal dwelling.

The prohibition of dual occupancy developments is one thing, but the mechanism used within the SI to limit floor area can create a quite perverse outcome, which is why it was decided to remove floor area restrictions for dual occupancies under the current PLEP.

Consider a property with an existing residence with a 200m² floor area. The way in which the SI restricts the floor area of a second dwelling means that, in this case, it would be restricted to a maximum of 100m². If the principal dwelling on the property next door has a floor area of 400m², all other things being equal the owner of that property would be permitted to build a secondary dwelling up to 200m², twice the size allowed on the neighbouring property, simply because the principal dwelling was larger.

Consider then the situation that would arise if the identification of a dwelling as principal or secondary were not temporally constrained (i.e. the first structure built need not necessarily be the principal dwelling), as is the case with a dual occupancy development. Should the owner of the current 200m² dwelling decide that they would like to build a new principal dwelling, with their existing dwelling becoming a secondary dwelling, the new dwelling would have to have a floor area of at least 400m² to satisfy the floor area restriction on what would become the secondary dwelling—they would not be permitted to build a new dwelling with a floor area in the range 100-400m². Not a major issue, perhaps, for urban dwellers, who are generally constrained by lot size in any case, but maybe not such a well-considered outcome for those fortunate enough to be living in our rural and rural residential areas.

The problem was that although dual occupancy developments are permitted under the PLEP, they are not permitted in rural and rural residential areas under the Queanbeyan LEP and the philosophy of the latter seems to have prevailed in the draft of the new, consolidated QPLEP. If you feel that this is a matter of concern, you should make an effort to provide relevant feedback when the draft QPLEP goes on exhibition, which should be any day now…