No Shed Sherlock!

(or the legal complexities of constructing of a Man cave)

Often, I hear comments from clients in relation to the complexity of building and planning laws, and the potential of falling foul of such laws due to overlap in their application.

One example of a complexity of regulation is the seemingly innocuous task of building a shed. A shed is of course a structure, which depending upon its use, size, siting, and/or foundations, may or may not require a planning and/or building permit.

So where do we start?

As a general proposition, a shed:

·        to be constructed on a residential property located in a general residential zone;
·        with a floor area of under 10 square metres; and
·        on a lot which already contains a dwelling;

will not require a permit.

The difficulty arises as soon as one departs from the “vanilla” scenario.For example, if rather than a shed, one wanted a ‘man cave’ which exceeded the ten square metre size limit the need for a building permit would immediately be triggered.

Similarly, if the shed was closer to the road than the front wall of the existing dwelling a building permit would be required. If there were no dwelling, or if the shed was more than three metres in height, or more than 2.4 metres in height and located within one metre of a boundary, the building permit requirements would again be triggered. If the shed were constructed of masonry or if it was plumbed it is also likely that the requirement to obtain a building permit would also be triggered.

Moreover, if a planning scheme overlay applied to the property, and such overlay provided that anything qualifying as ‘works’ needed a planning permit, then the shed, even if under the ten metre floor size, may still require a permit, if, for example, a retaining wall or substantial excavation were required to site it where you want it.

But again, these requirements are not hard and fast rules. For example: if the retaining wall was under one metre and no planning overlays applied to the land it would be unlikely to require building or planning permits (of course the shed floor area must still be under ten square metres).

Had enough yet? If an existing planning permit in respect of the site authorised a shed different in nature to the one you desire to build, then no building permit could be granted without first applying to the appropriate local government department to amend the planning permit to allow your new version of the shed. This would also be the case if the planning permit contained a restriction on sheds on the site generally. Consent would be required to have any shed at all.

Confused? I haven’t even started on the effect of covenants, section 173 agreements or easements on your shed.

The above is a classic illustration of the complexity of building and planning laws in the state of Victoria and the inevitable confusions which will arise where such laws overlap.The moral? If one is considering constructing a shed, the first point of call should probably be a lawyer or building surveyor.

It should also be remembered that, under the current regulatory regime, building surveyors are required to be planning experts in addition to building experts and if they issue a building permit in circumstances where a planning permit was first required, they can be liable for professional negligence and/or prosecution by authorities.

Oh, and the maximum penalties for getting the above wrong is at least a miserly $50,000 per breach of the Building Act and $180,000 per breach of the Planning and Environment Act.

In any event, good luck constructing your man cave.

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