Posted on August 10, 2017 by Katie Mortimer and Sue Puckeridge
Going back to BASIX – are you sure you don’t need one (for a boarding house)?
The increased instance of ‘new generation boarding houses’ (long-term, low cost rental accommodation) under the State Environmental Planning Policy (Affordable Rental Housing) 2009 (‘SEPP ARH‘) raises an interesting question as to what constitutes BASIX affected development.
This question goes to the power of a consent authority to approve a development application (‘DA‘) if it is not accompanied by a BASIX Certificate (‘BASIX‘).
Schedule 1, Part 2A of the Environmental Planning and Assessment Regulation 2000 (‘Regulation’) states that a BASIX must accompany a DA for any ‘BASIX affected development’.
However, the Building Code of Australia (‘BCA’) does not require a BASIX for Class 3 buildings (a Class that applies to most boarding houses). As such it is common for applications for development consent for boarding houses to not be accompanied by a BASIX.
This requirement means that if development is considered to be BASIX affected development, and is not accompanied by a BASIX, a consent authority is not empowered to grant development consent.
What is BASIX affected development?
‘BASIX affected development’ is defined by the Regulation to be development that 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’.
A dwelling 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.’
An interesting implication arises that, if following a careful consideration of the DA documents, a room in a boarding house is capable of being occupied or used as a separate domicile, it may constitute a dwelling. If a boarding house contains one or more rooms that constitute dwellings, it will be BASIX affected development.
Is a boarding house room capable of being used as a dwelling?
The Courts have held that “domicile” ‘embodies the idea of a permanent home or a significant degree of permanency of habitation or occupancy’ (Wollongong City Council v Vic Vellar Nominees Pty Ltd (2010) 178 LGERA 445 at 32).
Whether a boarding house room is capable of being a dwelling should be considered on a case by case basis. Clearly the length of time which rooms in a boarding house are let is a relevant consideration to the determination of whether the rooms are dwellings.
Given the increasing volume of applications for ‘new generation boarding houses’ and considering it goes to the power to grant development consent, consent authorities should give careful consideration to the question.
Should you wish to discuss this blog, please contact Sue Puckeridge, Partner on 8235 9702 or by email at sue.puckeridge@lindsaytaylorlawyers.com.au
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