I apologize if this has already been covered in this long thread but I was wondering how the S94 would apply to some councils in the instance that S94 applies if the second dwelling is income generating and not used by family members.
If for instance the second dwelling was used by family members for a period of time (say 2 years) but later they moved on to a new house would the s94 still be enforced and if so how would they monitor/enforce it?
Thanks
S.94 of the Environmental Planning and Assessment Act (The Act) is a complex beastie.
Basically, what it does is permits councils to include as a condition of development consent the dedication of land or payment of money, or both in some instances, for any development that is likely to require council to provide, or increase demand upon, services in the area.
But, council has to have adopted a contributions plans before they levy a contribution. A contributions plan identifies public services and amenities to meet the demand of development.
This is where the inconsistency comes in. Every council has a different plan, and a different requirement of works to be carried out.
The argument is that a granny flat is a dwelling and can increase the potential density of households on the land - just as if a dual occupancy was to be constructed on the land. You might have 4 people in the main house and 2 people in the granny flat, just as you might only have one person in one dwelling of a dual occupancy and only one in the other dwelling of a dual occupancy.
No consideration is given with the legal framework of The Act for who will inhabit the development. And nor should there be. Otherwise every developer would claim a battleaxe subdivision was for their elderly parents who were already living with them etc etc.
In terms of contributions and when they are payable, the following is a good general guide:
For subdivision, the fees need to be paid prior to the release of the Subdivision Certificate.
For DAs involving building work, payment is required prior to the release of the first Construction Certificate (so you have to pay before you can play)
For development applications where no Construction Certificate or Subdivision Certificate is required, payment is required prior to the release of the development consent or prior to issue of the first Certificate of Occupancy.
Hope that helps.