Happy days are here again – bringing back the Fonz

Following the state government’s recent re-election, it appears likely we will see action taken in the near future to remove the onerous restrictions on ancillary accommodation under the current planning framework.

The anticipated changes will allow the backyard dwelling traditionally housing an elderly relative – colloquially referred to as a “granny flat’ – to be opened to the rental market for occupation by any and all, a practice sometimes described affectionately as a “Fonzie flat” in memory of television’s favourite lodger.

Current framework

The Residential Design Codes (R-Codes) currently define ancillary accommodation as:

Self contained living accommodation on the same lot as a single house that may be attached or detached from the single house occupied by members of the same family as the occupiers of the main dwelling.

The acceptable development provisions for ancillary accommodation, set out at clause 6.1.11 of the R-Codes, also prescribe the following set of development standards:

An additional dwelling or independent accommodation associated with a single house and on the same lot where:

  • the sole occupant or occupants are members of the family of the occupiers of the main dwelling;

  • the lot is not less than 450m2 in area;

  • the open space requirements of [the R-Codes] are met;

  • there is a maximum floor area of 60m2; and

  • one additional car space is provided.

The most significant constraint in relation to ancillary accommodation is the restriction of the occupation of these secondary dwellings to family members of the occupiers of the main dwelling.  This restricts the potential to unlock a significant stock of affordable housing contained in existing building stock as well as acting as a disincentive to incorporate ancillary accommodation as a feature of new development.

New developments

During the recent state election campaign, the Minister for Planning Hon John Day MLA (Minister) pledged to amend the existing constraints within the R-Codes so that “so-called empty nesters and seniors can unlock equity in their homes and receive a regular income, or provide space for a carer to live close by in their ageing years” while also noting that students and young people could also benefit.

The proposed changes could also allow suburban homeowners to explore the development potential lying dormant throughout residential areas.  Evidence of this potential has already been demonstrated in the City of Fremantle, which took the issue into its own hands by initiating a scheme amendment to facilitate affordable housing in the form of small secondary dwellings.

Scheme Amendment No 46 (Scheme Amendment) to the City of Fremantle Local Planning Scheme No 4, which was gazetted in December 2011 and received an Award for Planning Excellence at the 2012 Planning Institute of Australia WA Awards, supersedes the restrictive provisions of the R-Codes in relation to ancillary accommodation and allows homeowners to construct a small secondary dwelling on their property (or utilise an existing detached structure) and rent it out independently as self-contained accommodation.  In many circumstances, planning approval will not be required.

It is understood that interest in the concept of ancillary accommodation has spiked since the Scheme Amendment, not only in Fremantle but also other local governments across Perth.

Lavan Legal comment

It is our view that the City of Fremantle should be commended for leading the way with a planning initiative that removes regulatory barriers and simplifies requirements for planning approval in order to achieve a sensible planning outcome for individuals and the community more broadly.  The Scheme Amendment is a great example that shows planning controls don’t necessarily have to become more complicated in response to the overall outlook in WA of population growth and increasing demand for affordable housing.

The City of Fremantle’s proactive approach also illustrates the positive influence a local government can have when it takes progressive action towards sensible regulatory reform, promotes the benefits and lays the path for a wave of change.

Hopefully the Minister’s promise to relax controls relating to ancillary accommodation will be realised in a change to planning legislation sooner than later, and before too long a new generation of Fonzie flats will arise in place of Granny’s former domain.

Disclaimer – the information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.