Following the announcement by the State Government on Friday, 23 September 2022 foreshadowing changes to “remove restrictions on people who can live in secondary dwellings”1 , the Planning Regulation 2017 (Planning Regulation) was amended today, 26 September 2022, by the Planning (Secondary Dwellings) Amendment Regulation 2022.

The amendments are to Schedule 24 (Dictionary) of the Planning Regulation.

Partner Sarah Macoun, Special Counsel Gemma Chadwick and Solicitor Georgia Mackenzie discuss the changes and the impact on local government areas.

The definitions of household and secondary dwelling are omitted and replaced with the following:

household means 1 or more individuals who live together in a dwelling.

secondary dwelling means a dwelling on a lot that is used in conjunction with, but subordinate to, another dwelling on the lot, whether or not the dwelling is-

  1. attached to the other dwelling; or
  2. occupied by individuals who are related to, or associated with, the household of the other dwelling.

The definition of “household” previously contained a reference to 1 or more individuals who “live in a dwelling with the intent of living together on a long term basis”, and who “make common provision for food and other essentials for living”.

The definition of “secondary dwelling” previously only referenced a dwelling, whether attached or detached, used in conjunction with, but subordinate to a dwelling house on the same lot (without any further elaboration or detail).

Other associated changes to definitions are:

  • dual occupancy – omit from paragraph (a) ‘for 2 households’ so that the amended definition reads (with changes shown in tracking):

dual occupancy

a. means a residential use of premises for 2 households involving—

(i) 2 dwellings (whether attached or detached) on a single lot or 2 dwellings (whether attached or detached) on separate lots that share a common property; and

(ii) any domestic outbuilding associated with the dwellings; but

b. does not include a residential use of premises that involves a secondary dwelling.

  • dwelling house – omit from paragraph (a) ‘for a single household’ and omit paragraph (b) and insert ‘(b) 2 dwellings, 1 of which is a secondary dwelling, and any domestic outbuildings associated with either dwelling’, so that the amended definition reads (with changes shown in tracking):

dwelling house means a residential use of premises involving—

a. 1 dwelling for a single household and any domestic outbuildings associated with the dwelling; or

b. 1 dwelling for a single household, a secondary dwelling and any domestic outbuildings associated with either dwelling.

b. 2 dwellings, 1 of which is a secondary dwelling, and any domestic outbuildings associated with either dwelling.

  • multiple dwelling – omit ‘detached, for separate households’ and insert ‘detached’, so that the amended definition reads (with changes shown in tracking):

multiple dwelling means a residential use of premises involving 3 or more dwellings, whether attached or detached. detached, for separate households.

Section 16(2) and (3) of the Planning Act 2016 provide that a regulation may prescribe requirements (the regulated requirements) for the contents of a local planning instrument. The contents prescribed by regulation apply instead of a local planning instrument, to the extent of any inconsistency. It is this mechanism that the State seeks to use to give effect to its policy intention.

The Planning Regulation prescribes regulated requirements2 for local planning instruments. The regulated requirements include use terms (Section 7 and Schedule 3) and administrative terms (Section 8 and Schedule 4). Dual occupancy, dwelling house and multiple dwelling are use terms, and household and secondary dwelling are administrative terms. These terms in Schedules 3 and 4 are defined in column 2 by reference to Schedule 24 (Dictionary) of the Planning Regulation.

For regulating uses in a local government area, a local planning instruments may adopt only the use terms in Schedule 3, Column 1 and, if it adopts a use term, it must include the definition of the term in Column 2. Similarly, if a local planning instrument includes an administrative term in Schedule 4, Column 1, it must include the definition of the term in Column 23 .

The amendments only make changes to the prescribed “use” and “administrative” terms. The amendments do not, for instance, specifically alter provisions of planning schemes that otherwise regulate matters associated with secondary dwellings, such as size (GFA) or car parking requirements. However, Local Governments may need to look at the existing provisions of their planning schemes to consider how the changes to the use and administrative terms will interact with existing provisions.