Why Are Granny Flats in Australia Often Unapproved?

Granny flats have become a popular housing solution in Australia, offering flexibility for families, affordable rental options, and a way to maximize property value. However, many granny flats remain unapproved due to non-compliance with local council regulations, zoning laws, and the National Construction Code of Australia (NCC). This article explores the common reasons for non-compliance and examples of the consequences of neglecting approval processes.

What Makes Granny Flats Non-Compliant?

1. Zoning Restrictions

Local councils regulate land use through zoning laws. Many properties are zoned in ways that prohibit secondary dwellings or limit their size, height, or placement. For example, some councils allow granny flats only in residential zones and prohibit them in rural or commercial zones.

2. Building Code Violations

The Building Code of Australia sets safety and quality standards for construction. Granny flats often fall short in areas like:

• Structural integrity.
• Fire safety requirements.
• Electrical and plumbing compliance.

3. Setback and Boundary Issues

Rules often specify how far a granny flat must be from property boundaries. Failing to meet these requirements can lead to disputes with neighbors and council rejections.

4. Lack of Approval Process

Some homeowners skip the council approval process to save time and money, leading to issues when selling the property or during inspections.

5. Poor Design and Construction Practices

Using unlicensed builders or DIY methods can lead to substandard construction that doesn’t comply with regulations.

Examples of Non-Compliance Consequences

1. Demolition Orders

In 2019, a Sydney homeowner was ordered to demolish an unapproved granny flat after neighbors complained about overshadowing and privacy issues. The flat was constructed without council approval and did not meet setback requirements.

2. Hefty Fines

In Brisbane, a property owner faced fines exceeding $25,000 after converting a garage into a granny flat without the required permits. The space lacked proper fireproofing and ventilation.

3. Resale Complications

A Melbourne couple struggled to sell their property when potential buyers discovered the granny flat was unapproved. The structure failed to meet minimum height requirements and fire safety standards, ultimately reducing the property value.

4. Insurance Issues

In Perth, an unapproved granny flat was damaged during a storm. The insurance claim was denied because the structure did not comply with the BCA, leaving the owner with significant repair costs.

How to Ensure Compliance

1. Consult with Local Councils
   Always check zoning regulations and approval requirements specific to your area.
2. Engage Qualified Professionals
   Hire licensed architects, builders, and engineers who are familiar with Australian regulations.
3. Apply for Necessary Approvals
   Submit detailed plans to the council for approval before starting construction.
4. Conduct Regular Inspections
   Ensure that all construction stages are inspected and certified by a qualified building surveyor.
5. Choose Pre-Approved Designs
   Many companies now offer granny flat designs that are pre-approved by councils, streamlining the compliance process.

Do Granny Flats Need Council Approval?

No – a granny flat does not need Council approval, but it needs a form of approval. So, there are 2 ways to get your granny flat approved:

• Development Approval (DA) – The traditional process through your local Council
• Complying Development Certificate (CDC) – Using a private certifier approve your proposed development, if it meets all necessary criteria.

There are many known cases of granny flats being constructed without the necessary approval. I once asked a local real estate agent who works in a suburb with a lot of granny flats about how many he know of that were not “approved”. He speculated that 60% were not council approved.

This made me think, why doesn’t council do anything about it? Simply put it would take too many resources to check them all, and keep checking them to ensure they go through the necessary processes of either demolishing them or submitting DA’s to have them approved. (Some councils will allow a DA to be submitted for an existing structure)

However, this isn’t the case all the time. Often, finding out a granny flat was not approved does not come to light until the property is being sold. This can cause major problems for both the buyer and seller.

Common examples include:

• One granny flat did not receive the final “Occupation Certificate”
• One granny flat only gained approval as a shed, which is not classified as a habitable space.

In both of these cases, the properties were sold using standard form contract to document the sale, which:

•  Do not give the buyer the right to terminate the contract due to an unauthorised dwelling on site.

So, real estate agents must make reasonable enquiries to the seller as to whether any secondary dwellings received approval.

Anyone who advertises a property that has a granny flat, but it is later found that the granny flat does not meet all legal requirements, can be found to have been involved misleading, deceptive behaviour. Which can result is large fines.

Not gaining the necessary approval also creates potential problems with insurance coverage if an incident occurs in/because of the granny flat. For example, there is a case of insurance not covering the main home or secondary dwelling due to a fire that started in the unapproved granny flat.

It also gives Council the authority to potentially undertake additional works in order to receive the correct approval, such as:

• Issuing A “notice of intention to serve”, meaning you have 21 days to rectify the problem.
• If you do not comply within the specified time, issuing a “notice to remedy”, meaning they can authorise destruction of the granny flat.
• If you still fail to comply, the Council can take you to Court and you will be fined until it is removed.

Hence, It is always worth seeking the proper approval.

*Please note – These laws are specific to your local Council and are subject to change. I recommend you seek legal advice from conveyancing experts.

What is Classed as a Caravan that Could Work as a Granny Flat?

These days, with the rise of rent and mortgages, people are seeking new, more innovative ways to live. We are experimenting with, as mentioned:

• Caravans
• Demountables
• Tiny homes.

If this interests you, you must be prepared to:

• Comply with your Councils’ regulations
• Live a minimalist life.

Tiny homes are a compact, transportable dwelling – much smaller than granny flats at 50sqm maximum. They are also an affordable option, so gaining in popularity. As most tiny homes are on wheels and movable dwellings, they are technically classified as a “caravan”. As such, again your Council can limit the amount of time you can permanently live in one, but this can vary between Councils’.

Also, depending on your Councils’ regulations you may be able to build a tiny home in your backyard as a Fixed structure, and it would classify as a granny flat. I also suggest you contact your local Council for their regulations.

Can You Use a Shipping Container on Your Land Without Council Approval?

No, Councils consider a shipping container a shed, and as such, they require Development Approval. You can, however, get approval to convert a shipping container into a granny flat.

What to Do

1. Research Local Council Regulations

• Action: Visit your local council’s website or office to understand zoning laws, building requirements, and restrictions for granny flats in your area.
• Why: Each council has unique rules regarding setbacks, maximum sizes, and permissible zones.

2. Hire Qualified Professionals

• Action: Work with licensed architects, engineers, and builders familiar with local codes and regulations.
• Why: They ensure your granny flat design complies with the Building Code of Australia (BCA) and local council requirements.

3. Submit a Detailed Application

• Action: Provide comprehensive plans, including site plans, elevations, structural details, and stormwater management plans, to your local council for approval.
• Why: A thorough application reduces the likelihood of delays or rejections.

4. Conduct Site Assessments

• Action: Assess the site for drainage, slope, and soil conditions before starting construction.
• Why: Proper site assessments help avoid future structural or environmental issues.

5. Choose Compliant Designs

• Action: Use pre-approved or council-endorsed designs where available.
• Why: These designs streamline the approval process and are guaranteed to meet council standards.

6. Keep Records

• Action: Maintain copies of all approvals, permits, and inspection reports.
• Why: These documents are critical for resale, insurance claims, and resolving disputes.

What to Avoid

1. Skipping the Approval Process

• Mistake: Building without council approval or failing to apply for required permits.
• Consequence: Risk of fines, demolition orders, or legal disputes.

2. Overstepping Zoning Limits

• Mistake: Ignoring zoning restrictions or building larger than the permitted size.
• Consequence: Your application may be rejected, or you could face penalties.

3. Using Unlicensed Builders

• Mistake: Hiring unqualified or unlicensed contractors to cut costs.
• Consequence: Substandard work that may not comply with the BCA, leading to safety risks and additional expenses.

4. Ignoring Boundary Setbacks

• Mistake: Placing the granny flat too close to property lines or encroaching on easements.
• Consequence: Potential neighbor disputes and legal challenges from the council.

5. Focusing Only on Cost-Saving

• Mistake: Opting for cheap materials or DIY solutions without considering compliance.
• Consequence: Increased risk of defects, non-compliance, and long-term maintenance costs.

6. Overlooking Utility Connections

• Mistake: Failing to plan for electrical, plumbing, and stormwater connections.
• Consequence: Delays in obtaining occupancy certificates or operational issues.

7. Neglecting Environmental Impact

• Mistake: Ignoring environmental requirements, such as stormwater management or tree preservation rules.
• Consequence: Penalties and delays during the approval process.

Pro Tips for Success

1. Engage Early
   Involve professionals at the design stage to ensure the project starts on the right foot.
2. Invest in Quality
   Use durable, compliant materials and proven construction methods to avoid long-term issues.
3. Plan for the Future
   Consider future needs, such as resale value, accessibility, and multi-generational living arrangements.
4. Stay Up-to-Date
   Building codes and council regulations can change. Regularly check for updates during the planning phase.

Conclusion

Unapproved granny flats can lead to significant financial and legal issues for homeowners. By understanding the reasons for non-compliance and learning from past mistakes, you can ensure your granny flat is built to meet all legal and safety standards. Partnering with experienced professionals and following the proper approval process is the best way to avoid costly consequences and enjoy the benefits of a compliant secondary dwelling.

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