The amended Housing Code in the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 came into effect July 14. The Code now provides for a streamlined development approval process for one and two storey houses. The new Code does not introduce major changes, but instead simplifies the original Code. Ensure you are up to date with the new Code.
In the recent case of Parker Logan Property Pty Ltd v Woollahra Municipal Council [2017] NSWLEC 1349, a development proposal to demolish an existing commercial building and construct a residential building had been refused by the Council on the basis that the proposal had an unsatisfactory disabled parking design. While disabled car parking spaces were included, they did not have a wide side area for disembarkation by disabled passengers. The developer argued that the side areas were unnecessary, because the majority of disabled passengers use rear-loading cars, not side-loading cars. The Council argued that the additional side width would accommodate modern developments in the loading of wheelchairs.
The judge agreed with the Council that the parking designs in the development should aim to provide best practice to disabled users. In coming to this decision, the judge explicitly rejected the developer’s argument that most disabled users would have rear-loading vehicles. The judge noted changes in technology that allow of side-loading, and the requirement that the development have accessible carparks under the Building Code of Australia and associated Australian Standards.
In the case Upper Hunter Sustainable Industries Association Inc v MACH Energy Australia Pty Ltd (No 2) [2017] NSWLEC 87, the Land and Environment Court grappled with the question of when work will be sufficient to ensure development consent does not lapse. The development consent granted to MACH expired in 2005, and MACH argued that it had undertaken works which would prevent the consent from lapsing being: an engineering survey and associated geotechnical work, the partial construction of a dam, and the grading of a road.
The Court applied the three limb test from Hunter Development Brokerage Pty Ltd v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council (2005) 63 NSWLR 124. The Court first asked whether the work was engineering, construction and building work, then whether it was related to the development, and lastly whether the work was real and substantial. The Court decide that the survey work and partial construction of the dam were sufficient to satisfy the requirements of the Hunter Brokerage test, and therefore the works were commenced prior to 2005 and the development consent did not lapse. The Court did not need to decide whether the grading of a road would have been sufficient, but indicated it may have been.
A recent Land and Environment Court decision has demonstrated that, contrary to prior assumptions, the subdivision of a strata lot will be subject to minimum lot size standards. In DM & Longbow Pty Ltd v Willoughby City Council [2017] NSWLEC 1358, a developer sought consent to subdivide an existing house into two apartments. The Willoughby Local Environment Plan (WLEP) was based on the Standard LEP and provided a minimum lot size standard, which the two strata lots did not meet. The WLEP also included an exception to the minimum lot standard for proposed subdivisions in an existing strata plan. In this instance, the judge held that since there was not an existing strata plan, and accordingly, the two strata lots were subject to the minimum lot size development standards.
In Terra Ag Services Pty Ltd v Griffith City Council [2017] NSWLEC 1355, the Land and Environment Court considered the rejection of a development proposal to construct three buildings on a rural lot of land. The developer wanted to build one administrative building, and two sheds for storing agricultural fertilisers and chemicals. The major issue in this case was whether the proposed development on the Site was permissible within the current zoning. The developer argued that it was a “rural supplies business”, permissible with consent. The Council argued it was a “heavy industrial storage establishment”, and hence prohibited.
The judge accepted that the proposed development could have more than one purpose, however did not accept that either use was dominant. As the part of the development which was used for a prohibited purpose was not subordinate to the permissible purpose, and the development was therefore prohibited in that zone.
The Home Building Amendment (Compensation Reform) Bill 2017 amends the home building insurance sections of the Home Building Act 1989. The Bill was assented to on June 27, and will come into effect upon proclamation by Parliament.
The key changes include:
The NSW Government has introduced a package to help first home buyers enter the market. However, to offset the concessions made to first home buyers, the package also raises the fees faced by foreign investors. For foreign investors stamp duty will increase from 4 to 8%, and annual land tax will increase from 0.75 to 2%. Additionally, any investors purchasing property off the plan will no longer be entitled to defer stamp duty for 12 months. These changes will be effective July 1 2017.
The Strata Schemes Management Act 2015 (NSW) sets out a new Defects Bond Scheme, which was to come into effect from 1 July 2017. The scheme will apply to the construction of residential strata scheme properties that have four or more stories, and are therefore not addressed in the Home Building Compensation Fund. The new scheme will require developers to lodge a defects bond which covers 2% of the contract price for the development. There are also requirements for two independent inspections, over a two year period.
Although the Bond Scheme was to come into effect from 1 July 2017, the Electronic Transactions Legislation Amendment (Government Transactions) Bill 2017 (NSW) has now been passed by Parliament, and delays commencement of the scheme until 1 January 2018.
A short reminder that the amended Retail Leases Act 2017 (NSW) will commence on 1 July 2017. The key amendments were outlined in our December and February publications, and include:
Our earlier articles explain these changes in more detail. Ensure you are prepared for these changes commencing 1 July 2017.
In Spiros Paul Antonatos v Inner West Council [2017], development consent was sought to add a storey to a residential apartment building and convert it into a boarding house. The Council had rejected the development application on the grounds that it was too high, would impact the privacy of neighbours, and was incompatible with character of the area. The Land and Environment Court also concluded that the development would be incompatible with the local area, having regard to: whether the proposal’s impact on the surrounding area was acceptable, and whether it was in harmony with that area.
