Overhaul of Planning Controls for Residential Uses

Planning and Environment

minutes reading time

DATE PUBLISHED: February 22, 2023

key takeaways

Planning laws in Queensland affecting residential use of property have recently changed.
These changes are broad and affect how owners and tenants can use residential property.
There is uncertainty in the industry about how the changes will affect proposed developments.

Over the course of roughly three months, the Queensland Legislative made seemingly small but significant changes to planning laws affecting residential uses of property across the state.

These changes are intended to de-regulate residential living arrangements and support housing diversity, and while these objectives have likely been achieved, the changes may also have broader consequences for the regulation of residential use of premises, particularly dwelling houses and secondary dwellings (commonly called ‘Granny flats’), throughout Queensland.

Before these changes took effect, many planning schemes in Queensland made dwelling houses, secondary dwellings and rooming accommodation assessable development in various zones and/or overlays.

Whilst the actual impact of these changes will vary from planning scheme to planning scheme, zone to zone and development to development, at a general level, the effect of the changes will reduce and limit the circumstances where planning approvals will be required.

Limitations about ‘who’ may occupy a dwelling (or dwellings), under what arrangements and with what intention have been removed. For example, secondary dwellings are now free to be occupied by a second, unrelated household, and as a consequence of these changes:

most residential uses of buildings, for example a dwelling house use (including a secondary dwelling), dual occupancy use and rooming accommodation use are now constrained by reference to their physical characteristics alone; and
it may now be very difficult to distinguish some residential uses from others (if they occur within a building which meets the physical characteristics of a ‘Dwelling house’).

Further changes enacted include overriding Council planning schemes to reduce the circumstances where development approvals are required including:

a material expansion of the circumstances when a material change of use for the dwelling house must be accepted development; and
the introduction of circumstances where a material change of use for Rooming accommodation can be accepted development.

These changes have been enacted through the Planning (Secondary Dwellings) Amendment Regulation 2022 (Qld) and Planning (Rooming Accommodation) Amendment Regulation 2022 (Qld). They will have impacts on local governments, developers, private certifiers, and homeowners more generally.

These changes were adopted with very limited consultation with local government and development industries, and at the time of this publication, there is confusion within those industries about how the amendments operate.

There is particular uncertainty for development applications for secondary dwellings, rooming accommodation and dwelling houses made before the changes took effect.

conclusion

The implications of these recent changes are broad and may affect how owners and tenants can use residential property.

Given the uncertainty about how the amendments will operate, and because these amendments have been affected through legislation (and therefore concern matters of statutory interpretation), legal advice is needed to understand how the amendments will affect any individual development proposal.

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