Zoning and Puppy Dogs

We were requested last year to reply to a special request from a lot owner who wanted to keep two little dogs in their apartment. The Owners Corporation did not have a set opinion regarding whether having two puppies would be good or not. In the main part, they wanted to allow this woman to have her pets.

We looked into the by-laws and found that the by-law permitted one small dog, cat or bird. Obviously, we felt that what would be required would be an amendment to the by-laws.

We then further investigated the zoning requirements for the premises. We found that the complex was in a land regeneration area. In relation to that zoning, there was a prohibition on more than one pet per house hold. The Local Environmental Planning Policy (L.E.P.) when one step further and said that, if you wish to have a pet, you must comply with a range of requirements including for example, the installation of animal proof fences around the full complex.

The purpose of the L.E.P. was designed to stop animals running throughout the regenerating flora. This might remind us all of the nanny state we live in, but it is worth noting the impact of zoning on by-laws.

A by-law is subservient to any Local Environmental Planning Policy. Any by-law made which is in conflict with a zoning 149 Certificate, will be void. By-laws cannot be made which are unlawful or in contravention of any law.

Therefore, in these circumstances, we had to provide the Owners Corporation with advice that they could not even consider a by-law in relation to two animals.

If you are making a by-law in relation to the use of a building, for example the use of commercial premises, you must ensure that the approval you are about to give does not violate any Environmental Planning Policy. If there is a violation, you may see your by-law rendered void some time in the future.

Unapproved Sites

I have recently been shocked about the lack of knowledge in our industry concerning the outcomes of unapproved buildings.

In Australia, the two most important factors associated with property are:

A) Ownership
B) Usage

Plenty is written and spoken about in relation to the ownership of property. Very little is considered outside the legal fraternity as important in relation to usage. The laws of New South Wales and other states are established to define and regulate the use of your property.

Under the Environmental Planning and Assessment Act 1979 (EPAA), the development of Environmental Planning Policies is regulated. The State government can outline Environmental Planning Policies. Local councils produce what is known as a Local Environmental Planning Policy, more commonly referred to as a L.E.P. The council also produces a document under this called a District Control Plan (D.C.P.).

All of these policies are amalgamated and are referred to as zoning. Each lot in New South Wales is therefore allotted a zoning, which ultimately defines what that property can be used for.

This is often important for developers who want to redevelop the land. To ensure a return on investment, a developer will want to know what the land can be used for. For example, a developer wants to ensure he can build a strata complex where he can sell the apartments for profit, before he buys the block of land to build the complex.

This is also important for people who are buying businesses or leasing businesses. No business in New South Wales can be conducted without a development approval. When doing a due diligence on a lease or a business for a client, the first thing Leverage would do is to check that the premises that they are buying will permit the business they wish to run.

There are a number of people in New South Wales who have converted garages to granny flats. These granny flats are not development approved and are being leased out to tenants. 

What happens if the council find out about these non-approved sites? The powers of each local council under the EPAA are clear!

• Under section 121B of the EPAA, the local council can issue a notice to a land holder requiring them to rectify the DA approved site. That is, it is a 21 day notice requiring them to stop using the site without development approval.
• After the 21 days has expired, the local council under the EPAA can effectively seek orders to close down the use of that premises.
• The local council can also seek fines up to a million dollars.

If you are a serious real estate or business agent, you need to be well aware of the zoning of each of the properties you are selling or leasing. All of this information is contained in the section 149 Certificate under the Environmental Planning and Assessment Act 1979. Before you sell or lease, your office should have a section 149 to review before proceeding.