Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Charlton v Secretary, Department of Finance, Services & Innovation, NSW Fair Trading [2015] NSWCATOD 128 Hearing dates: 6 and 13 October 2015 Decision date: 11 November 2015 Jurisdiction: Occupational Division Before: S Leal, Senior Member Decision: The decision to refuse the applicant an owner-builder permit is affirmed. Catchwords: Home Building Act – application for owner-builder permit – whether dual occupancy – whether secondary or single dwelling – strata subdivision. Legislation Cited: Home Building Act 1989 Standard Instrument (Local Environmental Plans) Order 2006 Standard Instrument—Principal Local Environmental Plan Category: Principal judgment Parties: Maria Charlton (Applicant) Secretary, Department of Finance, Services & Innovation, NSW Fair Trading (Respondent) Representation: Solicitors: In Person (Applicant) B Bourke (Respondent) File Number(s): 1520144 Judgment Introduction 1. Ms Maria Charlton is the owner of a property in Newcastle which she purchased in 1991 and subsequently divided into two units. For twenty-five years, Ms Charlton has used one unit as her residence and the other as her professional marketing office. 2. On 24 January 2014, simultaneous approval was given by the City of Newcastle Council ('the Council') to Ms Charlton for alterations and additions to the dwelling and to the two-lot strata subdivision of the property. Lot 2 of the strata subdivision is Ms Charlton's residence while Lot 1 is an office. 3. On 14 May 2015, Ms Charlton applied for an owner-builder permit in relation to the approved alterations and additions. There is no dispute that the alterations and additions relate to Lot 2 of the strata subdivision, which is Ms Charlton's residence, and consist of a deck enclosure over a leaky ultra-floor that forms the ceiling over Lot 2's garage. 4. NSW Fair Trading, who is the respondent in this matter, refused Ms Charlton's application for an owner-builder permit. The decision was upheld on internal review on the basis that an owner-builder permit cannot be granted where the subject of the work is an individual lot in a strata scheme. 5. In support of her application to this Tribunal for a review of this decision, Ms Charlton submitted that her application for an owner-builder permit should be allowed on the basis that her property is more akin to a dual occupancy than a complex residential strata. 6. Ms Bourke for NSW Fair Trading submitted that there is no discretion in this matter as an owner-builder permit is simply not available where the work is to be conducted on an individual lot in a strata scheme. Legislation 1. Part 3 of Division 3 of the Home Building Act 1989 ('the Act') is entitled 'owner-builder permits.' Within this division, s29(1)(b) of the Act defines 'owner-builder work' to mean residential work that relates to a single dwelling-house, dual occupancy or secondary dwelling. 2. According to the Act, dual occupancy and secondary dwelling have the same meanings as in the Standard Instrument—Principal Local Environmental Plan ('the Instrument'), which is the principal local environmental planning instrument prescribed by the Standard Instrument (Local Environmental Plans) Order 2006. 3. Relevantly, the Instrument defines dual occupancy to mean two dwellings on one lot of land. 4. A secondary dwelling means a self-contained dwelling that: (a) is established in conjunction with another dwelling (the principal dwelling), and (b) is on the same lot of land as the principal dwelling, and (c) is located within, or is attached to, or is separate from, the principal dwelling. 1. A dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile. A dwelling-house means a building containing only one dwelling. Evidence 1. A title search for the relevant property was undertaken by the respondent on 7 October 2015. The search disclosed that Ms Charlton, together with Ms Carmen Beverley-Smith, are joint tenants in Lot 1 of the relevant Strata Plan for the property and that Ms Charlton is the owner of Lot 2 of the relevant Strata Plan. 2. In oral evidence, Ms Charlton told the Tribunal that she sought a strata subdivision of her property so that her superannuation fund could purchase Lot 1 (the office) in order to provide her with a tax-exempt rental income in her retirement. 3. Ms Charlton submitted that she wished to enclose the deck of Lot 2 (the residence) in order to increase her living space, protect her residence from the coastal environment and protect her garage from a leaky deck that forms the car garage ceiling. She denied any intention to use the deck enclosure for commercial benefit and denied any plans for further subdivision of the property. There is no dispute that the proposed renovations relate solely to Lot 2 (the residence). There is also no dispute that Ms Charlton has successfully completed a course in owner builder compliance and that she has been issued with a Workplace Health and Safety Construction Induction card. 4. Ms Charlton told the Tribunal that she had initially sought only the development application for the deck enclosure and had lodged an application to this effect in January 2012. Following lengthy delays by Council, however, and in light of her intended retirement, Ms Charlton was advised to include the strata subdivision application together with the application for the deck enclosure to avoid further delay. Both applications were approved in January 2014. In its decision to refuse Ms Charlton an owner-builder permit, the delegate of NSW Fair Trading noted that Ms Charlton may well have been entitled to the permit prior to the strata subdivision of the property. It is therefore unfortunate that there was such a delay in considering Ms Charlton's original application for development approval for the deck enclosure, which was lodged while she still retained freehold title of the property. 5. Ms Charlton agrees that the strata subdivision of the property was approved in January 2014 but submits that her property is not a traditional complex strata situation and that NSW Fair Trading should have the discretion to instead treat her property as a dual occupancy. It is Ms Charlton's submission that it would be financially prohibitive for her to use a licensed builder in order to undertake the approved renovations to her residence. 6. In support of her application for review, Ms Charlton submitted a letter from the architect, Mr Andrew Doring, dated 29 May 2015 which states, in part, as follows: [T]he Home Building Act 1989 allows 'owner-builder work' to single dwelling houses or a dual occupancy I believe the intention of this is to keep the construction work of the owner builder to a relatively simple building method and not be responsible for difficult construction which would be fire-rated floor, walls and roof, acoustic and impact ratings and extensive specific related trades. In principle is must be noted that this building is not dissimilar to a dual occupancy although all the fire-rated floor and/or walls have already been constructed and not being touched as part of the scope of work. …The commercial premises part of this building is not below the work involved as it is the garage for this residence. No work will require any fire rating. The floor structure will remain intact and battened over for the new flooring. All construction is therefore consistent to a Class 1a building (single dwelling) as classified by the BCA. 1. Ms Bourke, for NSW Fair Trading, submitted that notwithstanding the nature of the proposed renovations, the fact that the premises in question – namely Lot 2 of the relevant Strata Plan – are strata titled preludes Ms Charlton from being granted an owner-builder permit. findings and reasons 1. The question to be answered in this case is whether there is a discretion in the Home Building Act 1989 to grant a owner-builder permit in relation to work on premises that are part of a Strata Plan. 2. Having considered the relevant provisions of the Act together with the evidence and submissions provided by Ms Charlton and by the respondent, I find that there is no such discretion available under the Act. 3. I am satisfied that under the provisions of section 29 of the Act, an owner-builder permit is limited to residential work relating to a single dwelling-house, dual occupancy or secondary dwelling. 4. As the property in question is Lot 2 on the relevant Strata Plan, I am satisfied that it cannot meet the definition of a secondary dwelling as that term is defined in the relevant instrument, namely the Standard Instrument—Principal Local Environmental Plan. This is because a secondary dwelling is required to be on the same lot of land as the principal dwelling. As each dwelling in the property – the residence and the office - is on a separate lot of land, namely Lot 1 and Lot 2 of the relevant Strata Plan, Lot 2 (the residence) cannot meet the definition of a 'secondary dwelling.' 5. Similarly, the property is not a dual occupancy under the definition contained in the Instrument because the two dwellings, the office and the residence, are not on the same lot of land – rather they are separate lots on the relevant Strata Plan. 6. According to the Instrument, a 'dwelling house' means 'a building containing only one dwelling, where a dwelling is a room or suite of rooms.. capable of being occupied or used as a separate domicile.' As the building in question contains two dwellings, it cannot meet the definition of either a 'dwelling-house' or a single dwelling-house. 7. As the Act and the Instrument are clear in their definitions, there is no scope to look beyond the definitions themselves or to consider whether the property itself has attributes more akin to a dual occupancy. As it is, the property comprises two lots of a Strata Plan and it is for this reason that Ms Charlton cannot be granted an owner-builder permit in relation to her deck enclosure. Accordingly, the decision of NSW Fair Trading to refuse to grant Ms Charlton an owner-builder permit must be affirmed. ORDER 1. The decision to refuse the applicant an owner-builder permit is affirmed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 November 2015