P&E Court decision on Granny Flats

Wednesday, October 17, 2018, by Project Urban

A recent decision by the Planning and Environment Court has deemed that a ‘house with granny flat’ was actually a dual occupancy (duplex). This decision could have wide reaching ramifications on how granny flats are developed and used throughout the State.

It all started when Bundaberg Regional Council issued an enforcement notice about two dwellings that had been built on a property. The owner stated that these dwellings were being used as a “dwelling house” and a “secondary dwelling” (granny flat).

The granny flat (secondary dwelling) is described as:

  • Fully self-contained with its own front door, bedrooms, bathrooms, kitchen, lounge and dining area, laundry, garage and patio space;
  • Displays a separate street address; has its own separate backyard that is fenced off from the other dwelling, with no means of access between the two backyards;
  • Has no gate, access or other connection permitting access to the other dwelling;
  • Has its own mailbox;
  • Has a separate connection to water services, and a separate water metre;
  • Has a separate sub-metre to facilitate a separate electricity account;
  • Has its own waste collection bin; and
  • Was rented as a separate dwelling.

The judge found that the development was a “dual occupancy” because each dwelling was being used by a separate “household” and hence failed the “dwelling house” land use definition test.

Some Councils have previously indicated there was no issue with granny flats being separately rented, provided the secondary dwelling was subservient, integrated and that a single bin service and utility meters were installed. This Planning and Environment Court decision may change the view of these Councils.

In recent years, land use definitions have been mostly standardised across Queensland. In fact, the definitions used by Bundaberg Council for dwelling house, secondary dwelling and dual occupancy, are the same as those used in Sunshine Coast, Moreton Bay and Gold Coast Councils (to name a few), so this particular decision could have far-reaching ramifications right across Queensland.


To read the full judgement, click here to download the PDF. To discuss ways to minimise the ‘separate household’ issue identified in this judgement, please contact us.