Received council letter re. unapproved granny flat (Campbeltown,NSW) - what can I do?

Background
I purchased a property with a garage converted to granny flat. The structure has an approved certificate 149D as a garage/storage with bathroom, but not as a granny flat. Rented the main house and granny flat separately since. Insurance are all ok, the insurer knows that it's unapproved as granny flat. But because I rented both structures separately, I need to get 2 landlord insurance policies, which I did.

A week ago I received this letter from council saying that the structure is not approved for granny flat, so would need to cease renting it. I called council, but they said they couldn't provide advise in a matter they had issue notice on (not sure why). Talked more to several people, and heard that a possible way is to get something called a certificate of compliance to approve the habitation as granny flat.

Questions:

- How could I get these certificate of compliance? Who should I contact/engage? Will it be a certifier/surveyor/anyone else? How much will this approx. cost?

- What are my other options to make the granny-flat approved?

- I read one of the post (from Propertunity) re. council couldn't enforce tenant eviction. Just being cheeky here and hypothetically speaking, if the structure is approved (means council can't take it down), and council can't evict tenant, does it mean that I could continue renting the place out without council consent? :D

Look forward to your inputs guys...thanks!
 
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Background
I purchased a property with a garage converted to granny flat. The structure has an approved certificate 149D as a garage/storage with bathroom, but not as a granny flat. Rented the main house and granny flat separately since. Insurance are all ok, the insurer knows that it's unapproved as granny flat. But because I rented both structures separately, I need to get 2 landlord insurance policies, which I did.

A week ago I received this letter from council saying that the structure is not approved for granny flat, so would need to cease renting it. I called council, but they said they couldn't provide advise in a matter they had issue notice on (not sure why). Talked more to several people, and heard that a possible way is to get something called a certificate of compliance to approve the habitation as granny flat.
Questions:

- How could I get these certificate of compliance? Who should I contact/engage? Will it be a certifier/surveyor/anyone else? How much will this approx. cost?

- What are my other options to make the granny-flat approved?

- I read one of the post (from Propertunity) re. council couldn't enforce tenant eviction. Just being cheeky here and hypothetically speaking, if the structure is approved (means council can't take it down), and council can't evict tenant, does it mean that I could continue renting the place out without council consent? :D

Look forward to your inputs guys...thanks!

Hmm. I have news for you and its mostly bad...

You said "The structure has an approved certificate 149D as a garage/storage with bathroom, but not as a granny flat"..... this "compliance certificate" you mentioned has already been granted to the building under s149D so you very likely wont be issued a second one just so you can change the use to something which means you can have a granny flat without going through an approval process.

It's probably best to be aware that Council will let the "Notice" process run and you need to respond to it. Council will first issue "a Notice of Intention to issue an Order" and then 28 days later issue an "order". You need to comply with whatever the order demands to avoid a prosecution commencing.

Council can take you to the NSW Local Court to enforce and/or the Land and Environment Court.

What you currently have is a "building Certificate (s149D) saying that Council will not make an issue of the unapproved work (use for bathroom and storage only) for 7 years from date of issue. Bear in mind that Councils dont issue s149Ds for work (or uses) that cannot be approved for whatever reason under normal planning controls or the Building Code of Australia.

YOU need to try and talk to Council's Building Surveyors as they are the ones that issue orders, not the planners.

You could always look up s149D of the NSW Environmental Planning and Assessment Act 1979 at www.austlii.edu.au

Hope this helps.

PS: I forgot to mention. The s149D Certificate costs around $300.
 
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I think this notice may have placed your insurance in jeopardy, and suggest you notify your insurers immediately that the council has ordered you to cease renting the granny flat, but tenants are in residence.

There is no harm in checking that this notice hasn't changed the situation.
Marg
 
A week ago I received this letter from council saying that the structure is not approved for granny flat, so would need to cease renting it.
Well that is a PITA. :(

- What are my other options to make the granny-flat approved?
Probably not many. It probably would not comply for a whole lot of reasons. But seek advice from certifiers etc.

- I read one of the post (from Propertunity) re. council couldn't enforce tenant eviction.
Yes, councils don't evict tenants, sheriffs do. But councils can direct property owners to comply with council regulations. :cool:

Just being cheeky here and hypothetically speaking, if the structure is approved (means council can't take it down), and council can't evict tenant, does it mean that I could continue renting the place out without council consent?
Yes - at your peril.

You have options you need to explore.
 
I would add one more thing... you said "The structure has an approved certificate 149D as a garage/storage with bathroom"

A section 149D is not an approval, it is an agreement from Council not to prosecute or take action for 7 years.

It appears to me that the person who created this bathroom/storage did so withourt approval, was caught and forced to get a s149D (something your lawyer/comveyancer should have picked up because it should be on the s148 Certificate you get with the contract for sale).

He/she couldnt get retrospective approval so had to get a s149D Certificate.
 
Thanks all, especially to Savanna100, for the info. The situation doesn't sound very good at this stage, but has been a big learning for me. It's my first gf experience, so please be patient with some of my silly questions....

You said "The structure has an approved certificate 149D as a garage/storage with bathroom, but not as a granny flat"..... this "compliance certificate" you mentioned has already been granted to the building under s149D so you very likely wont be issued a second one just so you can change the use to something which means you can have a granny flat without going through an approval process.

Is there any way to apply for change of use of a structure?

It's probably best to be aware that Council will let the "Notice" process run and you need to respond to it. Council will first issue "a Notice of Intention to issue an Order" and then 28 days later issue an "order". You need to comply with whatever the order demands to avoid a prosecution commencing.

Council can take you to the NSW Local Court to enforce and/or the Land and Environment Court.

Thanks for info above. I definitely don't want to get that far, but would like to explore all avenues to get the gf approved before giving up, for obvious reason. Yes...I am one of those greedy landlords :D

What you currently have is a "building Certificate (s149D) saying that Council will not make an issue of the unapproved work (use for bathroom and storage only) for 7 years from date of issue. Bear in mind that Councils dont issue s149Ds for work (or uses) that cannot be approved for whatever reason under normal planning controls or the Building Code of Australia.

Sorry...I'm not very clear on above. Does that mean that at least the structure is currently sound under BCA?

YOU need to try and talk to Council's Building Surveyors as they are the ones that issue orders, not the planners.

You could always look up s149D of the NSW Environmental Planning and Assessment Act 1979 at www.austlii.edu.au

Hope this helps.

PS: I forgot to mention. The s149D Certificate costs around $300.[/QUOTE]

Thanks for the info. WIll talk to the council surveyor first thing Monday and will check the link out.
 
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I think this notice may have placed your insurance in jeopardy, and suggest you notify your insurers immediately that the council has ordered you to cease renting the granny flat, but tenants are in residence.

There is no harm in checking that this notice hasn't changed the situation.
Marg

Very good point, marg4000. I definitely don't want to be exposed to any litigation in case something happened (god forbid) to tenants/trademens.

You have options you need to explore.

Could you please elaborate (either here or by PM) on above? Thanks.

Wonder which neighbour complained. Lived next door to one of these shonky set ups. Very unpleasant experience.

Sorry to hear about your experience twobobsworth.

The gf is completely separate from the main house, with separate lawn and entry too, so I wouldn't have thought that it'd disturb any neighbour, just based on it's setup. It's rented to a quiet couple too.


Just wonder....will the new granny flat ruling make a difference to my situation? I have been reading the SEPP, and looks like the gf meets all the requirements there, except the BCA which I'm not to sure of. But if s149D means that it meets BCA, do you think I should start discussion with council/private certifier re. using the SEPP to pass the granny flat?
 
Thanks all, especially to Savanna100, for the info. The situation doesn't sound very good at this stage, but has been a big learning for me. It's my first gf experience, so please be patient with some of my silly questions....

No problem at all, happy to help

Is there any way to apply for change of use of a structure?

Yes, you need a development application to clarify the actual use. You can actually get retrospective approval for uses in NSW but NOT for Construction Certificates which is where you have come unstuck. Your little bath/dtore wont have a CC and they cannot be issued retrospectively so hence the s149D certificate.
Thanks for info above. I definitely don't want to get that far, but would like to explore all avenues to get the gf approved before giving up, for obvious reason. Yes...I am one of those greedy landlords :D

Nah, I'm sure you are like the rest of us. I'm debating about whether to do something to my house to turn it into an IP eventually and am wondering whether to get approval (and I know the game inside out).



Sorry...I'm not very clear on above. Does that mean that at least the structure is currently sound under BCA?

It seems like Council would not have issued a s149D without the structure at least being able to comply with the BCA. Again, you MUST talk to the Building Surveyor at Council.



You could always look up s149D of the NSW Environmental Planning and Assessment Act 1979 at www.austlii.edu.au

Hope this helps.

PS: I forgot to mention. The s149D Certificate costs around $300.

Thanks for the info. WIll talk to the council surveyor first thing Monday and will check the link out.[/QUOTE]

You are very welcome. Councils can be confusing and scary and NSW has one of the worlds very complex planning law regimes...it took me bloody years in at doing major assessments to be this knowledgable :) !!!
 
Just wonder....will the new granny flat ruling make a difference to my situation? I have been reading the SEPP, and looks like the gf meets all the requirements there, except the BCA which I'm not to sure of. But if s149D means that it meets BCA, do you think I should start discussion with council/private certifier re. using the SEPP to pass the granny flat?

Probably not, your problem is that the "Order" under the Local Govt act process has started and this is what you need to manage.

Then, when its under control, worry about what path to take. I seriously think that something with a s149D on it ...an unapproved structure, would not be able to be certified in the normal way although you may get a CC for the use only. The structure itself would remain unable to have a CC issued.

You will need to find out your exact position from the Council building surveyor.
 
Has the council provided separate rubbish bins for the granny flat?
If so they may have excepted the existence of separate rental.

Gerd
 
Was caught by the council some 5+ years ago.

As has already been mentioned you will need to manage the order process as it will just simply roll on.

In our case we extended an existing GF (big room plus bathroom) into a full blown 2 br GF by taking space out of the house and balcony under main roof. Thus we had not extended the original roof.

Council sent same or similar order in the form of show cause and put back as was. I went to see council to put thing right and get it approved and whilst talking and corresponding with council the order process simply continued until a $1500 fine arrived (to the wrong address) and finally a final order.

Obviously the left and right hand don't talk so even doing work to meet their requirements will not stop the process.

I had explained that tenant was on lease and would be vacating on such a date. They regard that as your problem.

In the end we cut the building in half and built a fire wall and also had to build a double carport although this property is on a block of 1000sqm and had ample parking including the slab I had installed for the original GF.

I suggest that you immediately remove tenant (even if you need to provide financial assistance to achieve an immediate move) as you have already lost a bit of time out of your 28 day notification and then as Savanna suggests discuss further with council.

Cheers
 
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I am trying to understand what you are in breach off.

If you don't have a full kitchen in the GF then it shouldn't technically be considered a granny flat. Its just a storage room with a bathroom I would have thought.

Is it illegal to have 2 leases on 1 property? How is this different to say a student accomodation set up where you are renting a property out by the room?

Is it possible to have only 1 lease and a sub lease so techincally you only have one tenant or is it possible to say rent out the property to say your husband and have 2 sub leases (one for the main tenant and the other for the granny flat?)

I had a building inspector tell me once that as long as you don't have a second oven in this type of property then techincally you don't have a kitchen. You can have electrical appliances such as a microwave and maybe a plug in cooktop. Its not a kitchen its a wet bar.

Is it illegal to set up a bedroom in a garage and allow someone to live in it? I wouldn't think so.

I know CGU are happy to insure this type of set up.
 
Many thanks again Savanna100, and handyandy for sharing your experience. Really appreciate it.

handyandy - with your case, at the end what process did you follow re. approval, was it through CC or DA? I did receive a fine of $750 with the letter, should I pay it while working on the remediation?

Has the council provided separate rubbish bins for the granny flat?
If so they may have excepted the existence of separate rental.

Good point. There are 2 rubbish bins at the property, but I couldn't remember if they're for the 2 properties or for one (ie. usual bin and recycling one).


If you have enough room to put a caravan there for the tenant, I think that would snooker the council.

Hehe :D


I am trying to understand what you are in breach off.

If you don't have a full kitchen in the GF then it shouldn't technically be considered a granny flat. Its just a storage room with a bathroom I would have thought.

I had a building inspector tell me once that as long as you don't have a second oven in this type of property then techincally you don't have a kitchen. You can have electrical appliances such as a microwave and maybe a plug in cooktop. Its not a kitchen its a wet bar.


My understanding is that the breach is because the structure is not approved to be used as a living place / gf, only as garage/storage. And yes, the place has a fully functional kitchen in it.

It's interesting your point on the oven thing, I may investigate it further when things settle down with council.

Is it illegal to have 2 leases on 1 property? How is this different to say a student accomodation set up where you are renting a property out by the room?

I don't think it's illegal to have more than 1 lease on a property. I'm not sure about insurance requirements for student accommodations, but for dual occupancy the insurer requested for 2 separate building and landlord insurance policies (as gf is detached). They said if gf is attached, I'd only need 1 building insurance but still 2 landlord insurance policies.

Is it possible to have only 1 lease and a sub lease so techincally you only have one tenant or is it possible to say rent out the property to say your husband and have 2 sub leases (one for the main tenant and the other for the granny flat?)

I read somewhere that this could help avoid the issue with council, ie. rent the whole property to a tenant and they could re-let the gf. So that it's tenant's issue that they let the gf for someone to live in. I'm not sure if council would treat it differently though (if caught), as the issue is that the structure is not supposed to be habitable.

Is it illegal to set up a bedroom in a garage and allow someone to live in it? I wouldn't think so.

From this experience, I believe it is :( Just hope that it wouldn't be a very expensive learning this one....
 
Firstly I didn't pay the fine as the notice was sent to the wrong address even though they were corresponding with me at that stage re some sort of approval. Only 'show cause' and then some time later received the fine at which stage took it to my soli who them corresponded - end of matter.

How have you already received fine? There should have been the whole 'show cause' 'order' and then fine. I don't understand.

As I never received the order and I had already engaged a draftee /planner we were merely going along as instructed drawing plans including the carport (at their request). I don't remember as to what it was but I think it was a DA but with low value as I didn't even have to have an Owner builder permit. I think in the end they were rather embarrassed as on the final inspection the dude who initially sprung me was very apologetic.

When we actually did the GF mods the wife simply phoned the council and they simply delivered the extra bins no questions asked. So I don't think that's any indication of their views re tacit approval.

As already mentioned I changed the nature of the existing GF from no stove to a fully fledged kitchen. The rest of the mods were closing of walls in the house and opening the appropriate walls in the GF and then enclosing a veranda. We won't mention the 2 new verandas we poured as they shouldn't have needed approval;).

I think your situation is somewhat different as you are trying to use space that is not approved for habitation. The garage may not have a damp proof membrane installed, may not have 2400mm clearance and a host of other 'requirements' which must be met for habitable areas.

Cheers
 
Has the council provided separate rubbish bins for the granny flat?
If so they may have excepted the existence of separate rental.

Gerd

No, what the OP needs is development approval under the Environmental Planning and Assessment Act 1979 for use of the space as a "separate domicile"... all tidy and legal and able to be sold as an asset, not something that someone got caught for previously and had to get a Building Certificate under s149D for.

You can always buy extra bins off a Council.
 
If you have enough room to put a caravan there for the tenant, I think that would snooker the council.

It isnt about "snookering the Council". If you are a serious investor, why would you not wnat everything legit and have it as a saleable asset instead of something that a buyer will discover in DD and then walk away from?
 
If you don't want to go thru all this, can you just (sfter the GF tenant leaves) just rent out the house including the granny flat, and tell them it's not legal?
The might just want to use it for a teenage retreat, guests, etc
 
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