Council notice development concent

[glenn123]

Hi all,

I bought a new built (6 months back) duplex house (only one part purchased) in NSW, Western Sydney region. It was sold to me as dual occupancy, the granny flat is attached to the main house (sharing the wall). The house has been on rent since it was purchased, it has two set of tenants. I have made no modifications to the granny flat since it was bought.

I got a council notice today stating that:

1. I should cease the use of the premises as dual occupancy
2. Demolish and remove any fixtures, fittings or appliances from the granny flat

The reasons for giving this order are

1. The premises are being used for a purpose for which a development consent is required but has not been obtained
2. There is no adequate protection from the spread of fire between two sole occupancy units that would be required to conform to Part 3.7.1 - Fire separation of the building code of Australia.

I am completely lost, please advice. Thanks heap.

 

[thatbum]

Well that's awkward. What did they tell you about that when you bought it?

 

[glenn123]

They said nothing when i bought it. As a matter of fact i remember the builder had to make a number of modifications to granny flat (Garden flat) before it got approved by Council, its only after than he got to sell it to me.

 

[Scott No Mates]

Don't bury your head in the sand, act now. Contact council to seek clarification of what they mean.

1) sounds like the garden flat isn't classed as a dual occupancy dwelling.
2) the place does not have the right fire separation from the house - ie window/door faces the house or is too close.
3) was an occupancy certificate issued for the g/f?
4) you will probably need to engage a building surveyor and town planner to resolve your issues.
5) seek clarification from your solicitor as to why these issues weren't picked up.

 

[glenn123]

Don't bury your head in the sand, act now. Contact council to seek clarification of what they mean.
4) you will probably need to engage a building surveyor and town planner to resolve your issues.
5) seek clarification from your solicitor as to why these issues weren't picked up.

Thanks, I sent an email to my solicitor. Since the house is newly built wouldn't the 12 month building warranty from the builder cover me?

 

[glenn123]

Don't bury your head in the sand, act now. Contact council to seek clarification of what they mean.

3) was an occupancy certificate issued for the g/f?

I have one occupancy certificate for the whole duplex (i.e both owners have the one certificate. i don't have a separate one for the half of duplex that i purchased or the Garden flat separately).

Sorry i don't know much about these things, i am not sure if i should have a separate certificate for each dwelling or not. As per your advice i sent an email the solicitor enquiring why this issue was not picked up during the settlement process.

 

[wylie]

I have one occupancy certificate for the whole duplex (i.e both owners have the one certificate. i don't have a separate one for the half of duplex that i purchase nor or the Garden flat separately).

Sorry i don't know much about these things, i am not sure if i should have a separate certificate for each dwelling or not. As per your advice i sent an email the builder enquiring why this issue was not picked up during the settlement process.

Did you email the builder or the solicitor who did your settlement?

 

[baby blue eyes]

My understanding of the secondary dwelling rules are you can only have one dual occupancy.

A duplex is a dual occupancy. Is it strata titled? I don't think you can add a granny to a strata title.

Adding a granny flat makes a dual occupancy in councils eyes.

My understanding is if the duplex is considered dual occ you cannot have a granny flat on the block as the block is dual purpose already.

You should have had stamped approved council granny flat plans. A garden flat, teenagers retreat, is not a granny flat.

I noticed a property in blacktown where they have a teenage retreat with a separate kitchen, a proper granny flat and a house. Sold recently as two tenancies. If it is actually three, I don't think it will be long til new owners get a letter.

 

[glenn123]

It is a freehold property and not a strata title.

 

[glenn123]

Did you email the builder or the solicitor who did your settlement?

Yes the solicitor, typo, just so stressed with this whole thing

 

[glenn123]

Don't bury your head in the sand, act now. Contact council to seek clarification of what they mean.

Contacted the council first thing in the morning and was advised that the officer in charge has been away sick from the past few days and has called in sick today as well. This is so frustrating. The officer has given me two weeks to action the notice and is away sick and apparently i can't speak to any other council officer

 

[HotRod]

Contacted the council first thing in the morning and was advised that the officer in charge has been away sick from the past few days and has called in sick today as well. This is so frustrating. The officer has given me two weeks to action the notice and is away sick and apparently i can't speak to any other council officer

Make sure you make a note of it.

Get the officer's email and send him an email detailing the same and CC it to the CEO.

You can't be held responsible for the officer's sickness impacting on your time to respond.

 

[glenn123]

Make sure you make a note of it.

Get the officer's email and send him an email detailing the same and CC it to the CEO.
.

Thanks for that. I send the email per your advice, at least now there is a record.

 

[marg4000]

Did your solicitor/conveyancer do a search to clarify the council approval was for dual occupancy?

This is a fairly specific search and often not carried out as a matter of course. Usually you have to state which searches you want carried out which absolves the solicitor from responsibility.

Just because the builder called it a granny flat does not mean that it was approved for separate rental.

Maybe the "dual occupancy" referred to the fact that it was a duplex.

I suggest you get immediate legal advice as you may have to terminate the lease of the occupant of the granny flat (within 14 days under fire regulations).

If you keep both tenants beyond the council deadline it may affect your insurance cover.

A friend got caught out recently in a similar situation. Her house had had 3 previous owners but when she sold it the buyer's search disclosed that final approval before occupation had never been given when the house was built around 20 years ago. Several weeks of stress and several thousand dollars with council and certifiers charges finally gave the official retrospective consent and the sale proceeded.

Marg

 

[glenn123]

Did your solicitor/conveyancer do a search to clarify the council approval was for dual occupancy?

This is a fairly specific search and often not carried out as a matter of course. Usually you have to state which searches you want carried out which absolves the solicitor from responsibility.

No i did not state which searches i want to carry out. i send an email to the solicitor but i haven't heard anything back. Wow seems like this issue is going to cost me good amount of money. i can't believe the builder can't be held responsible in this instance.

 

[Perp]

No i did not state which searches i want to carry out. i send an email to the solicitor but i haven't heard anything back. Wow seems like this issue is going to cost me good amount of money. i can't believe the builder can't be held responsible in this instance.

This isn't a building issue but a planning issue. There's nothing wrong with the building itself; there's a problem with the way you're using it - to house two households. If you were genuinely using it as a "granny" flat - i.e. with a family member of the main occupants living in it - there'd be no problem.

You can't have two households on a single title without planning approval. If you didn't ask the solicitor whether it was approved for this purpose, I doubt you have recourse to anybody else for this mistake. Even if the builder explicitly told you that you could let them out separately, you would be unreasonable in relying on such advice, as he's not a planner.

 

[Scott No Mates]

It is funny the number of houses that you see in some areas which have 2 granny flats and separately leased. All illegally.

 

[vaughan]

They said nothing when i bought it. As a matter of fact i remember the builder had to make a number of modifications to granny flat (Garden flat) before it got approved by Council, its only after than he got to sell it to me.

This is the bit that worries me: you refer to it as a "garden flat". What's that?

I'd be making a copy of the property listing that you relied upon to make the purchase. The info may be needed later.

 

[Terry_w]

Might be better to seek legal advice from a solicitor other than one that did the conveyancing - in case they were negligent, they may try to back peddle or cover up etc.

 

[Perp]

This is the bit that worries me: you refer to it as a "garden flat". What's that?

I'd be making a copy of the property listing that you relied upon to make the purchase. The info may be needed later.

It won't help the case if it's described as a granny flat. Just because it has a granny flat, doesn't mean that a buyer is entitled to assume that he could rent it out separately.

It wouldn't help even if it says something like "completely separate granny flat" - that just means that the member of your household who's intended to reside there has their privacy.

It probably wouldn't even help the case if the listing says "Dual income potential", as the word "potential" leaves room for the fine print: "subject to Council approval".

The point I'm making though is this: a description of what a property is, is an entirely separate issue to what one is entitled to use that property for: nature of property <> usage.