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  • Profile photo of HPropertyHProperty
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    @hproperty
    Join Date: 2013
    Post Count: 13

    Hi Will,

    Brisbane City Plan 2000 does not mention leases at all, but it does restrict the number of unrelated occupants of a house to five (5). If the property you mention has been approved as a house with a secondary dwelling then you’d need to ensure the occupancy is restricted to 5 or less unrelated people, which could be problematic when it has 7 bedrooms.

    I think the issue is pretty much dead and buried (and it’s a moot point anyway) as the new City Plan 2014 allows 5 leases on a house in low density residential zoning under Rooming Accommodation and is self assessable for 5 or less people.

    Hope this helps.

    Profile photo of HPropertyHProperty
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    @hproperty
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    Hi Daniel,
    Definitely make sure the granny flat has council approval. This should be a no-brainer for any property purchase.
    For an existing property under built under the Brisbane City Plan 2000, you can rent a granny flat so long as there’s no more than 5 people in both dwellings.
    Historically any house with a granny flat is classified under Category 4 – Multi Residential Rates. I have written confirmation from the rates department that this is because there are 2 separate self contained dwellings and that they can be rented separately. They also stated that they did not agree with the Compliance Team’s interpretation of the City Plan which lead to the Enforcement Notices (that were mentioned in this thread). Even if, the property is owner occupied, it’s still classed as Multi Residential but you will get the owner occupier exemption which reduces the rates.
    If you’re planning on building new under the City Plan 2014, forget the granny flat. Unfortunately the changes in the new plan won’t even let granny live independently in a granny flat, as that would be classed as dual occupancy. Instead, take a look at new Rooming Accommodation Code. It allows 5 households (5 people living independently) in normal residential zoning. Alternatively you could build a granny flat and rent it as Rooming Accommodation.
    Simon

    Profile photo of HPropertyHProperty
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    @hproperty
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    Just another money grab. Councils justify it by saying that non-owner occupiers can claim it on tax and therefore should pay more than an owner occupier. This is a very bad argument.
    If you work in a job that allows you to claim sunscreen, does a shop charge you more to purchase that sunscreen?
    The service provided by councils is the same regardless of whether a property is owner occupied or not.
    Think of two identical homes, next door to each other. Both are being used for residential purposes and both have 3 occupants. Council will charge one more than the other because the owner is not living in it. Note that it does not even need to be ‘income producing’ for the extra charges to apply ; just non-owner occupied. This is not a fair and equitable system and the Supreme Court has agreed.

    Profile photo of HPropertyHProperty
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    @hproperty
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    Just an update on the QUU charges. The fees can be found on the QUU website under business rates & charges.

    Basically you get charged a minimum of $110.22 per toilet per quarter, but they are nice enough to give you one for free. So if you are on Brisbane’s “Category 4 – Multi Residential” rates and have 3 toilets, your charged an extra $881.76 in pedestal charges. The same property, if owner occupied, would be on “Category 1 – Multi Residential” rates and would not incur this charge.

    If anyone has any information to the contrary, please let me know.

    • This reply was modified 10 years, 7 months ago by Profile photo of HProperty HProperty. Reason: Link not showing
    Profile photo of HPropertyHProperty
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    @hproperty
    Join Date: 2013
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    Hi John,

    I had this issue with the last property we settled on in Brisbane. My legal advice was that anything left at the property at time of settlement is classed as abandoned goods and are yours to keep.

    Always good to do a pre settlement inspection to ensure any rubbish has been removed and if you’re not happy, delay settlement until such time as it’s rectified.

    So far as owners taking items prior to settlement, my understanding is that anything that’s not a fixture can be removed so long as it’s not included in the contract.

    Simon.

    Profile photo of HPropertyHProperty
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    Hi Dragun,

    I have been following the Mackay Investor case in the news and it looks imminent that councils across Qld will be forced to refund as much as $300M to investors due to illegally charging investors higher rates.

    A property I own in Brisbane is rated as “Category 4 – Multi Residential” that is currently tenanted. If was to owner-occupy the property, the rates department would change this to “Category 1 – Multi Residential” which is almost half that of Category 4.

    Not only that, but Queensland Urban Utilities (QUU) are getting in on the overcharging act too, by imposing a “pedestal charge” (ie. a charge for the number of toilets) for any Category 4 rated properties. This QUU charge generally adds about $150/quarter to a normal rates bill.

    It was great to see the Mackay guys win their case in the Supreme Court, but of course, council is appealing the decision so it may be a little while yet before we see any refunds.

    I don’t know if anyone is really aware that the impact extends beyond the council’s budgets. There are flow on effects, like QUU, where they will be forced to drop their ridiculous charges and refund investors too.

    Simon.

    Profile photo of HPropertyHProperty
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    Hi Daniel,

    BCC has allowed granny flats for decades. The question is, can you rent one out? The answer to this depends on whether it’s a new house or an existing one.

    If it’s an existing house with secondary dwelling that falls under the City Plan 2000, then you can rent how you like so long as there are no more than 5 individuals in entire property (house + secondary dwelling).

    However, BCC are set to bring in the new City Plan 2014 prior to 1 July this year. They have made a real balls-up of things in it such that you cannot have independent occupation of a secondary dwelling (granny flat) ; even granny is unlawful if she wants to retain her independence. For independent occupation of a secondary dwelling (rented or not), BCC are requiring a Dual Occupancy approval, and to get a Dual Occupancy approval you’ll need 3000m2 in normal residential zoning. So it seems like they are wanting to kill off the granny flat as an affordable housing option under the new City Plan.

    A twist here is that the new plan has a Rooming Accommodation Code (which by the way, the public have had no consultation on) and this allows rent-by-the-room. If there are 5 or less people, then rent-by-the-room falls under the dwelling house code which I understand is self assessable (no approvals needed). Therefore, the City Plan 2014 does allow a house with a secondary dwelling to be rented by the room, so long as a single person (eg granny) does not occupy the secondary dwelling on their own.

    There has been an attempt by BCC to retrospectively apply the changes in the new City Plan to existing properties, however many owners have taken BCC to court on the matter….and won.

    Previous posts on this thread have indicated that BCC will be attempting further legal action to retrospectively apply these changes. To date, no further legal action has been taken and I personally believe it is just further bullying tactics by BCC in an attempt to discourage the practise.

    btw…I know of a BCC Councillor that rents their granny flat out, so I would expect some serious apple carts to be upset if BCC push it further.

    So, if you’re wanting to rent out a granny flat, make sure you get in before the new City Plan is adopted.

    Hope this helps.

    Simon.

    Profile photo of HPropertyHProperty
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    So a quick summary of this issue is:-

    BCC has had 2 barristers working for over 6 months or more to amass half a room full of documents, in an attempt to enforce an 'opinion' regarding a City Plan that is about to be superseded. That 'opinion' contradicts that of the principle author if the City Plan (as well as their own rates department), and is one which they have already lost numerous times in court appeals. 

    Furthermore, if BCC happens to be successful in convincing a higher court of their 'opinion', and if they are able to retrospectively apply the decision to existing properties, it will result in mass evictions across Brisbane of granny flats, student accommodation, rooming accommodation and dual occupancy properties.

    Well done Brisbane City Council!

    Profile photo of HPropertyHProperty
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    Hi Darryl,

    Any more word on this so called "Originating Application" that Brisbane City Council is supposedly doing?

    I heard that it was to be completed last August/September 2013, but there's been nothing.  I get the impression that this was just further rubbish that BCC was feeding people in order to cast doubt over the granny flat issue.

    Noone at BCC seems prepared to talk about the issue anymore ; they are just hoping it all goes away.

    Have you heard of any news?

    Regards,

    Simon.

    Profile photo of HPropertyHProperty
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    @hproperty
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    You might want to check out the new Queensland State Planning Provisions that came into effect late last year.

    They define "Household" as:-

    "An individual or a group of two or more related or unrelated people who reside in the dwelling, with the common intention to live together on a longterm basis and who make common provision for food or other essentials for living."

    They then go on to define dwelling house, dual occupancy and multiple dwelling around this definition of "Household":-

    • "Dwelling house – A residential use of premises for one household that contains a single dwelling. The use includes out-buildings and works normally associated with a dwelling and may include a secondary dwelling"
    • "Dual occupancy – Premises containing two dwellings on one lot (whether or not attached) for separate households."
    • "Multiple dwelling – Premises containing three or more dwellings for separate households."

    So a property is being defined based on it's use, rather than on physical attributes of the building itself, and it requires the occupants of a house to eat together and/or share essentials for living (whatever they are classed as).

    Prior to the new definitions, you were classed as a house under the Brisbane City Plan 2000 if you had no more than 5 unrelated occupants ; There were no other restrictions or limitations, so you could in fact rent a granny flat.

    Brisbane City Council is adopting these new definitions in it's new Brisbane City Plan 2014, and it appears that the Enforcement Action has only started appearing since the draft plan was in review with BCC Councilors.

    The implications for those Qld councils (eg. Ipswich, Logan etc.) that promote granny flats for separate rentals is unknown.  eg. Ipswich Planning Scheme current distinguishes between an annexed unit and a dual occupancy by physical characteristics of the building (ie. the size of the "granny flat").  Less than 65m2 and it's an annexed unit whereas greater than 65m2 is a dual occupancy.  Now that there are conflicting definitions at a State level, is this allowed, or is it not?

    Also, I believe that the "household" change will even see granny being unlawful if she lives independently in the granny flat (eg. cooks her own meals and pays her own bills) or is not expected to live long.  It seems an application for a "Dual Occupancy would be required".   Oh, and did I mention that to get approval for a dual occupancy under the new Brisbane City Plan 2014 you need 3000m2 in normal residential zoning?  

    Brisbane City Council appears to have been actively trying to retrospectively apply these new definitions on existing properties across Brisbane.  This seems to be why they have been issuing the Enforcement Notices and why they have only started appearing when the new Brisbane City Plan 2014 was being drafted (and not anytime over the last decade of the 2000 City Plan).

    Brisbane City Council should be ashamed of the actions they have taken here!

    Profile photo of HPropertyHProperty
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    Hi Xeryus,

    You might want to check with Ipswich CC now that new QPP definitions have been introduced for Household, Dwelling House and Dual Occupancy.  It may have just become unlawful.

    Profile photo of HPropertyHProperty
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    Just an update on things here……BCC are currently in the process of withdrawing these enforcement notices.  Hooray for common sense!

    I'm the owner of a primary/secondary dwelling in Brisbane and was issued with one of these council enforcement notices at the beginning of this year.  Both dwellings are leased on their own lease agreement.

    I appealed the enforcement notice to the Planning and Environment Court as I did not believe BCC had any basis for their actions.  Brisbane's City Plan 2000 House Code specifies that 5 unrelated people can constitute a household group and it does not specify anything about lease agreements.

    To date council have not been able to provide a brief for my case, and then this week have communicated that they will be withdrawing the enforcement notice.

    After being through the process, I have learnt a lot and I cannot agree with a number of things in your assessment here.

    BCC do not view my property as a multi-unit dwelling and they have stated this in the legal documents relating to my case.  So your conclusion that the decision of the AAD Design case makes the property a multi unit dwelling is incorrect.

    To take this issue through to court based upon leases would also prove to be VERY embarrassing for council as they are actively promoting student rooming accommodation at the present time.

    If you are still representing owners with enforcement notices over their primary / secondary dwellings, I'd be asking BCC to withdraw them like they are doing with mine.

    Regards,

    Simon.

Viewing 12 posts - 1 through 12 (of 12 total)