Posted on June 19, 2024 by Nathan Sloan and Stuart Simington

Secondary dwelling converted to a dual occupancy caused a fuss

An objector argued that a consent granted by the Lake Macquarie City Council was invalid because the proposed change of use of an existing ‘secondary dwelling’ to a dwelling house to create a ‘dual occupancy’ involved no ‘development’.  The Land and Environment Court rejected the argument and confirmed that the change of use was ‘development’ regardless of whether there would be physical change to the dwellings situate on the land.

Background

‘Dwelling house’ and ‘dual occupancy (detached)’ are forms of ‘residential accommodation’ under the Lake Macquarie Local Environmental Plan 2014 (LEP).

A ‘dual occupancy’ means two attached dwellings on one lot of land but does not include a secondary dwelling.

A ‘secondary dwelling’ means a self-contained dwelling that is established ‘in conjunction with’ another dwelling on the same lot as the principal dwelling.

Council granted consent to the DA for the change of use including the erection of a carport and two covered decks.

Did the change of use constitute ‘development’?

The objector argued there would be no actual change of use of the land because there was no physical act or change involved. The physical acts by which the land was used for the purpose of a secondary dwelling were equivalent to those physical acts involved in using the land for the purpose of dual occupancy. The Council’s decision to grant consent to the new use was therefore invalid as no ‘development’ was involved.

However, the Court confirmed that the use of land does not necessarily require the carrying out of physical works.  The definition of ‘development’ in the EPA Act (which includes ‘the use of land’, ‘the erection of a building’ and ‘the carrying out of a work’) plainly contemplate both physical and non-physical acts.

The Court held that approval could be granted for the future change of use of the existing buildings: ‘Just as development consent can be given for the future use of an already erected building (Buyozo at [39] and [41]), so too can approval be granted in respect of a change of use of existing buildings.’

The change of use of the buildings was material in any event as the Court identified differences between the use as a ‘secondary dwelling’ and use for a ‘dual occupancy’. ‘…[T]he relationship between the residents and the residents and the place changes,…’  In the former, the use of the secondary dwelling is in conjunction with the principal dwelling but in a dual occupancy that is not the case.

The case confirms that a change of use, whether or not involving physical act, may constitutes development. You can read the case here: Peden v Lake Macquarie Council [2024] NSWLEC 2.

To discuss this post, please contact Nathan Sloan on 8235 9732 or Stuart Simington on 8235 9704 or leave a comment below.