Pursuant to Clause 6, State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (“SEPP BASIX”) applies to:
“BASIX affected development for which the regulations under the Act require a BASIX certificate to accompany a development application or an application for a complying development certificate or construction certificate.”
The Environmental Planning and Assessment Regulation 2000 (“the 2000 Regulation”) previously defined BASIX affected development as follows:
“BASIX affected building means any building that contains one or more dwellings, but does not include a hotel or motel.
BASIX affected development means any of the following development that is not BASIX excluded development—
(a) development that involves the erection (but not the relocation) of a BASIX affected building,
(b) development that involves a change of building use by which a building becomes a BASIX affected building,
(c) development that involves the alteration, enlargement or extension of a BASIX affected building, where the estimated construction cost of the development is—
(i) $100,000 or more—in the case of development for which a development application or an application for a complying development certificate is made on or after 1 October 2006 and before 1 July 2007, or
(ii) $50,000 or more—in the case of development for which a development application or an application for a complying development certificate is made on or after 1 July 2007,
(d) development for the purpose of a swimming pool or spa, or combination of swimming pools and spas, that services or service only one dwelling and that has a capacity, or combined capacity, of 40,000 litres or more.”
In circumstances where as BASIX was required for any building that contains one or more dwellings (but not including a hotel or motel) it was necessary to consider the meaning of a “dwelling, which was defined in the 2000 Regulation as follows:
“dwelling, in relation to a BASIX affected building, 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.”
There are a number of cases in the Land and Environment Court which have considered whether a boarding house constitutes a “dwelling”, which turn on the question of whether the rooms are capable of being occupied or used as a separate domicile.
In the matter of SHMH Properties Australia Pty Ltd v City of Sydney Council [2018] NSWLEC 66, Chief Justice Preston considered whether a boarding house was “BASIX affected development” and made the following observations:
“[63] … Each of the 39 boarding units and the manager’s room meet the definition of “dwelling”. They will be so constructed or adapted as to be capable of being occupied or used as a separate domicile. They contain the essential components of a domicile and a dwelling of sleeping, bathroom and kitchen facilities. The facilities provided in the kitchenette in the 39 boarding units include a bench, sink, microwave, fridge and freezer. There will also be electrical sockets that can accommodate a variety of electrical cooking and food preparation devices. Plug-in electrical cooking appliances, such as frying pans and grillers, could be used by occupants in the kitchenettes because they are not precluded by any condition of consent: see Warlam Pty Ltd v Marrickville Council at [39]. The fact that an oven and cooktop are not provided in these boarding units will not prevent the kitchenettes from being used as a kitchen: see Blacktown City Council v Haddad at [53(c)].”
Having regard to the above comments from the Chief Judge, it is likely that most boarding houses would contain the essential components of a domicile, and as such would be considered BASIX affected development.
On 26 November 2021, the Environmental Planning and Assessment Amendment (Housing) Regulation 2021 (“the amending instrument”) came into force. The amending instrument inserted the following new definition of ‘BASIX affected development’ into the 2000 Regulation:
“BASIX affected building means a building containing at least 1 dwelling, but does not include the following types of development as defined in the Standard Instrument—
(a) hotel or motel accommodation, or
(b) a boarding house, hostel or co-living housing that—
(i) accommodates more than 12 residents, or
(ii) has a gross floor area of more than 300 square metres.”
The new definition of BASIX affected building inserted into the 2000 Regulation on 26 November 2021 excludes boarding houses that accommodate more than 12 residents, or that has a gross floor area of more than 300m2.
As a consequence of these amendments, a significant number of boarding houses will no longer be required to be accompanied by a BASIX Certificate.
On 4 March 2022, the Environmental Planning and Assessment Regulation 2021 (“the 2021 Regulation”) came into force. The definitions have been relocated to the Dictionary in Schedule 7 of the 2021 Regulation, and the term “BASIX affected building” has been replaced with “BASIX building”, however, the exclusion of boarding houses that accommodate more than 12 residents, or that has a gross floor area of more than 300m2 has been carried over from the 2000 Regulation.
Moving forward it will be important for those preparing or assessing development applications to consider more closely whether or not the development the subject of the application is a “BASIX building” that is required to be accompanied by a BASIX Certificate.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
