Residential Code applications — what is and what is not “a minor variation from complying development”?

1 September 2016

Since the introduction of the Residential Code in 2007, section 35(1b) of the Development Act has proven to give rise to issues of contention.

This section provides:

“A development that is assessed by a relevant authority as being a minor variation from complying development may be determined by the relevant authority to be complying development (and that determination will then have effect for the purposes of this Act).”

What is and is not “minor” is often the subject of debate between planners, councils and private certifiers as are the circumstances in which section 35(1b) applies.

In this decision of the ERD Court, where judgment was delivered on Monday this week, guidance has been provided on the application of section 35(1b).

Briefly, the background to this appeal is that Mr Mundy obtained, from a private certifier, development plan and building rules consents for the demolition of an existing dwelling and associated outbuilding and for the construction of two new single storey dwellings. The land is within a Residential Code area.  Mr Mundy provided his consents to the Council which then wrote to him asserting that the proposed development was not a complying form of development and that a development application would need to be lodged with the Council for assessment.  The Council wrote to the private certifier in similar terms.  Mr Mundy appealed this decision.

The proposed development failed to comply with the Residential Code in the following respects:

• the frontages of each dwelling site fell short of the minimum frontage by more than 0.7 metres (or some 7% below the required frontages);
• the setbacks for each dwelling were 0.45 metres less than required;
• only one dedicated car parking space was provided for each dwelling, rather than the required two spaces.

Mr Mundy’s lawyers argued that section 35(1b) applied to the proposed development and hence the development plan consent granted by the private certifier was valid.

The Court did not agree.

Firstly, the Court found that section 35(1b) applies only to variations to existing, approved, complying development.  As the dwellings did not exist and could not be approved as complying developments section 35(1b) did not apply.

Further and in any event, the Court found that even if section 35(1b) did apply to Mr Mundy’s application, the variations from the Residential Code requirements were not “minor”. The Court found that the shortfall in frontages alone was considerably in excess in what could be considered minor.

Consequently, the Court declared that the development plan consent granted by the private certifier was invalid and quashed it.

This is an important judgment. Councils which identify that a private certifier has granted consent to a Residential Code development application which contains variations from Residential Code requirements can now reasonably refuse to issue development approval in reliance on this decision.

If you have any questions regarding the above please contact Victoria Shute at vshute@kelledyjones.com.au or on 8113 7104.