Posted on May 29, 2018 by Katie Mortimer and Sue Puckeridge
Back to BASIX, Part 2 – Boarding house rooms may constitute separate dwellings
Last year we discussed what constitutes BASIX affected development and questioned whether boarding house rooms are capable of constituting separate dwellings, therefore making a boarding house a BASIX affected building (see our previous blog).
The Land and Environment Court (Court) recently considered this very question and confirmed our view that if rooms in a boarding house are capable of being used as a separate domicile, therefore meeting the definition of a ‘dwelling’, a BASIX certificate for the development will be required to accompany the development application.
In 2017, City of Sydney Council (Council) granted development consent for the change of use of a building used by members of a club for accommodation to a boarding house. The development consent was subject to deferred commencement conditions that required a BASIX certificate to be lodged (Conditions).
SHMH Properties Australia Pty Ltd (Developer) lodged a modification application under (previous) s96(1) of the Environmental Planning and Assessment Act 1979, seeking the Conditions be deleted. The Developer submitted that the approved development was not BASIX affected development, therefore it did not require a BASIX certificate.
Council refused the modification application, and the Developer appealed to the Court.
BASIX affected development
‘BASIX affected development’ involves the erection, change of building use, or extension of a BASIX affected building. A BASIX affected building is ‘any building that contains one or more dwellings, but does not include a hotel or motel’ (see clause 3 of the Environmental Planning and Assessment Regulation 2000 (Regulation)).
Relevantly, a dwelling (in relation to a BASIX affected building) is defined in the Regulation as, ‘a room or suite of rooms occupied or used, or so constructed or adapted as to be capable of being occupied or used, as a separate domicile.’
The Developer contended that no boarding house rooms were constructed or adapted as to be capable of being occupied or used as a separate domicile. Council submitted that they were.
The boarding house was BASIX affected development
The Court found that 39 of the boarding house rooms, and the manager’s room, fulfilled the definition of a ‘dwelling’, as they contained the essential components of a domicile, being sleeping, bathroom and kitchen facilities. They were intended to be self-contained.
The Court looked at the kitchenette facilities to be provided in these 39 boarding house rooms. The kitchenettes consisted of a bench, sink, microwave, fridge, freezer, and electrical sockets that could accommodate electrical cooking and food preparation devices.
The lack of oven or cooktops did not prevent the kitchenettes from being used as kitchens. The use of plug in frying pans and grillers were not precluded by any condition of consent, and it was not appropriate for the Court to ‘adopt a technologically constrained and dated view of what constitutes a kitchen‘.
There were 52 boarding house rooms in total. 13 rooms were held not be dwellings because they did not have kitchenettes. The inhabitants of these 13 rooms would need to access communal kitchen facilities for food and meal preparation, separate to their rooms. Given the definition of ‘BASIX affected building’, these 13 rooms did not alter the fact that a BASIX certificate was required for the development.
Implications for Development Applications
Schedule 1, Part 2A of the Regulation states that a BASIX must accompany a DA for any ‘BASIX affected development’.
This case reinforces the importance of consent authorities and developers carefully assessing whether boarding house rooms are constructed or adapted as to be capable of being occupied or used as separate domiciles. If they are, a BASIX certificate must accompany a DA.
The case also introduces some flexibility as to what must be present in a modern kitchen, for the Courts to be satisfied of occupation or use as a domicile.
Read the case in full here SHMH Properties Australia Pty Ltd v City of Sydney Council  NSWLEC 66.
Should you wish to discuss this blog, please contact Sue Puckeridge, Partner on 8235 9702 or by email at email@example.com