Living legally state by state the high level situation for THOW and THOF

Part 1: QLD, NSW, VIC


1. On solid ground

Let’s start with the easy bit.

Tiny Houses on Foundation (THOF) are a subset of what is regulated under planning schemes across the country – the single detached dwelling.

One house

Now that the Building Code of Australia has removed the minimum size for a house, you can legally build a THOF on a vacant lot, just like a regular house. You will however need a building permit – so be aware of the restrictions of the building code regarding certain features common in tiny houses such as lofts.

Two houses

Across all three States, the ‘granny flat’ concept is the easiest way to legally build and live in a THOF. Terminology varies between councils: secondary dwelling, auxiliary dwelling, ancillary dwelling are the common terms.

In all cases, the THOF needs to be smaller than the main dwelling and many councils specify a maximum size (the largest we’ve come across so far is 100m2). Councils may also have rules for the distance from the main house, the setbacks (i.e. the distance between the building and the lot boundaries), how many bedrooms it can have, etc. All these restrictions will be detailed in the planning scheme. Besides these restrictions, you will also need to check for other constraints such as easements or overlays.

The most restrictive limitation imposed on the granny flat for the Tiny House community is the requirement for the THOF occupant to be a family relative or someone who is part of the main household. Again we get into definitions but essentially, it means that you cannot have a stranger living in your backyard who lives completely independently to the people in the main house. And you definitely cannot rent out your granny flat. This scenario becomes a ‘dual occupancy’ use in planning scheme-speak, and requires a development application and the payment of (sometimes substantial) fees.

In Queensland and NSW, as long as you meet all the criteria in the planning schemes, you don’t need to lodge a development application for a granny flat. In Victoria you will require a planning permit. In all cases you will need to get a building permit.

The granny flat arrangement cannot be extended to having two THOF on a lot because one is supposed to be large and the other smaller. Having two THOF would take you back to a ‘dual occupancy’ use.

Three or more houses

Having more than two THOFs on a lot would be considered a ‘multiple dwelling’ development. In planning schemes, this term is usually intended to capture units, townhouses and apartments. This type of development is usually restricted to certain areas of a city, such as lots close to transport hubs.

The codes written in planning scheme are not suited to the multiple THOF arrangement. To undertake such a project at the moment in any of the States, would require a very detailed (and possibly expensive) development application, payment of application and infrastructure fees, not to mention the high cost of the land.

Another factor at play with this scenario is that with more than one dwelling on a lot, there will be common or shared areas which leads to the land tenure being managed under a Body Corporate arrangement. Something else to think about and pay for.

Knowing the rules

Most councils have their planning schemes online these days so you can look up the codes yourself and see what is required. You can also contact your Council to obtain this information.

2. To be (a caravan) or not to be (a caravan)?

A Tiny House On Wheels (THOW) falls in that very grey middle between a house and a caravan. And each council will have its different views on whether it is one or the other.

A ‘building’

The standard rule that most councils will try to apply comes from the building legislation which defines that any structure tied to the ground via foundations, piers, or other means, is a ‘building’ and therefore needs to comply with the building regulations. As such the ‘building’ will then also have to comply with planning rules.

It has been demonstrated in a couple of appeals and court cases that this is not necessarily a default interpretation. However, until regulations are amended, there will always be uncertainty for THOW dwellers.

A ‘caravan’

Caravans are not regulated under the planning or building regulations as they are not ‘buildings’. Instead councils may have their own local law to control the siting of caravans in order to prevent ‘shanty’ towns from popping up. Restrictions are usually around the length of stay, anywhere from two weeks to 180 days, although some councils completely prohibit being able to stay in a caravan on private property (these councils are usually in highly touristed areas). The longer stays are usually allowed for the purpose of providing temporary accommodation whilst you are building a house and a building permit application will be required as evidence of the intent.

What’s legal right now?

In Queensland, the only legal option for living in a Tiny House On Wheels (THOW) is to stay in caravan parks, or to find a council that does not have a local law (or a lenient one) on living in a caravan.

In Victoria, a THOW is allowed as a granny flat and is referred to as a dependent person’s unit (i.e. the THOW occupant is dependent on the person living in the main house). A number of other criteria need to be met in order to be allowed to setup the THOW.

In NSW, State legislation allows THOWs as granny flats but they must be occupied by someone related to the owner of the main house. THOWs are also allowed on pastoral or agricultural land as long as they are occupied seasonally by persons employed to work on the property.

In all States, although not legal, parking your THOW on a large property, most often in rural areas, will be permitted by the Council as long as no complaints are forthcoming.