Spread the love

It is a well-known fact that in Aus­tralia hous­ing prices are increas­ing and the younger gen­er­a­tion is find­ing it dif­fi­cult to enter the home­own­er­ship mar­ket. The Aus­tralian pop­u­la­tion is aging and 73% of Aus­tralians aged between 65–74 are home­own­ers with lit­tle to no mort­gage.

Granny Flats

One solu­tion to afford­able hous­ing that has become increas­ing­ly pop­u­lar is old­er Aus­tralians sell­ing their homes and using the funds to buy a prop­er­ty and build a granny flat on the land. A Granny Flat is a self-con­tained small home built in the back­yard of an exist­ing house, that can be attached or free-stand­ing.

This solu­tion offers a num­ber of ben­e­fits to all par­ties involved. It allows the younger gen­er­a­tion to have hous­ing secu­ri­ty, whilst also keep­ing fam­i­lies close togeth­er which pro­vides increased ben­e­fits of child­care and care for the par­ents in the future if they hap­pen to require it.

To build a granny flat there are cer­tain require­ments under the Local Gov­ern­ment and State Envi­ron­men­tal Plan­ning Instru­ments, some of these require­ments include:

  • The granny flat must not be larg­er than 60m2
  • The total lot must be a min­i­mum of 450m2
  • You will need to check your Local Envi­ron­ment Plan to ensure it is per­mit­ted in your zon­ing
  • If you are apply­ing for a free-stand­ing granny flat, you must have a min­i­mum 12 metre width at the build­ing line of the exist­ing house
  • You can only have one granny flat per block of land


Dual Occupancy Homes

Dual Occu­pan­cy Homes are becom­ing pop­u­lar in recent years as a response to the grow­ing pop­u­la­tion.

There are many upsides to Dual Occu­pan­cy Devel­op­ment, they can pro­vide solu­tions to hous­ing for fam­i­lies or serve as invest­ments. It is becom­ing pop­u­lar for fam­i­lies to build a Dual Occu­pan­cy Home and live in one dwelling and rent the oth­er. This allows for anoth­er income stream.

We are also see­ing Dual Occu­pan­cy Hous­ing being used instead of granny flats to accom­mo­date fam­i­lies who are of a larg­er size.

A Dual Occu­pan­cy Home is defined as two dwellings on one lot of land, these dwellings can be attached or detached.

  • One of the main require­ments for a Dual Occu­pan­cy home is the min­i­mum lot size.
  • The require­ments for Dual Occu­pan­cy homes dif­fer depend­ing on your local gov­ern­ment area.
  • In the event that your local gov­ern­ment area does not specif­i­cal­ly state a min­i­mum lot size require­ment the State Envi­ron­men­tal Plan­ning Pol­i­cy (Exempt and Com­ply­ing Devel­op­ment Codes) 2008 applies and pro­vides the min­i­mum lot size is 400m2.
  • The max­i­mum height of the dwelling can­not exceed 8.5 meters above ground lev­el
  • Prin­ci­ple pri­vate open space must be pro­vid­ed for each dwelling that is at least 16m2 and 3m wide.
  • There must be one off-street park­ing for each dwelling.
  • The max­i­mum gross floor area is 25% of the lot plus 150m2 to a max­i­mum of 400m2
  • Each dwelling must face a pub­lic road
  • One dwelling can­not be behind anoth­er.


  • Each local gov­ern­ment area has dif­fer­ing restric­tions on zon­ing and min­i­mum lot size require­ments.
  • It is impor­tant to check with you Local Envi­ron­ment Plan to deter­mine if Dual Occu­pan­cy and Granny Flat homes are per­mis­si­ble in your area and the require­ments, they have imposed on them.
  • A Dual Occu­pan­cy Home can­not have a sec­ondary dwelling on the lot, if it did that would mean there were three prop­er­ties on one lot of land.
  • If your prop­er­ty does not meet the stan­dards to erect either of these dwellings, a Devel­op­ment Assess­ment can be con­duct­ed through your local coun­cil which may allow for the require­ments to be altered.

Case Law

Amin­zadeh v Par­ra­mat­ta City Coun­cil [2019] NSWLEC 1223 (Amin­zadeh)

In the case of Amin­zadeh the Appli­cants lot did not meet the min­i­mum lot size require­ments as set out by the Par­ra­mat­ta City Coun­cil for a Dual Occu­pan­cy Dwelling to be erect­ed.

The min­i­mum lot size was 600m2 and the Appli­cants site for devel­op­ment was slight­ly below the require­ment at 595.5m2.

When assess­ing the request for vari­a­tion of devel­op­ment the Court applied the Wehbe Test. Which states a vari­a­tion in a devel­op­ment stan­dard must estab­lish reasonableness/necessity for the vari­a­tion by con­sid­er­ing the fol­low­ing:

  1. com­pli­ance with the devel­op­ment stan­dard is unrea­son­able or unnec­es­sary because the objec­tives of the devel­op­ment stan­dard are achieved,
  2. the under­ly­ing objec­tive or pur­pose is not rel­e­vant to the devel­op­ment with the con­se­quence that com­pli­ance is unnec­es­sary,
  3. the under­ly­ing objec­tive or pur­pose would be defeat­ed or thwart­ed if com­pli­ance was required with the con­se­quence that com­pli­ance is unrea­son­able,
  4. the devel­op­ment stan­dard has been vir­tu­al­ly aban­doned or destroyed by the Council’s own deci­sions in grant­i­ng devel­op­ment con­sents that depart from the stan­dard and hence com­pli­ance with the stan­dard is unnec­es­sary and unrea­son­able, or
  5. com­pli­ance with the devel­op­ment stan­dard is unrea­son­able or inap­pro­pri­ate due to exist­ing use of land and cur­rent envi­ron­men­tal char­ac­ter of the site/land. That is, the site should not have been includ­ed in the zone.

The court found that the vari­a­tion of the min­i­mum lot size stan­dard for dual occu­pan­cies in this instance was con­sid­ered rea­son­able, and there are suf­fi­cient envi­ron­men­tal plan­ning grounds to jus­ti­fy a vari­a­tion of the stan­dard of 600m2.

This case demon­strates the Court’s will­ing­ness to assess indi­vid­ual cir­cum­stances and use its dis­cre­tion on a case-by-case basis to deem what is appro­pri­ate.

We can help

If you are look­ing to buy, sell, or mod­i­fy a prop­er­ty to accom­mo­date your chang­ing lifestyle then get in touch. Sarah will guide you through the process keep­ing you prop­er­ly informed from start to fin­ish with clear expla­na­tions and prompt com­mu­ni­ca­tions.

For Further Information Please Contact

Sarah Mehlert

Position: Lawyer

Direct Phone: (02) 6583 0438

Email: smehlert@dohlaw.com.au

Looking for further advice?

Con­tact Us