In 2011 Barry McIntosh bought his dream home in New Brighton. Originally the house was built as a ground level bungalow similar to a number of other houses on his street.
But in the late 1970s-early 80s the house had been raised and could be used as two separate flats, or as a single dwelling. Like all responsible prospective home buyers, Barry asked his lawyers to find out what plans were listed at Byron Shire Council (BSC) to establish that the house was legal.
They were told that no plans were available as they had been lost during either a flood or fire, but that the house, having originally been built in the 1950s, would be established as existing use.
Fast forward ten years and Mr McIntosh is heading to the Land and Environment Court after being ordered to remove the kitchen, bedrooms, and living areas downstairs. The issue started in 2017 when Council said there had been complaints ‘concerning an alleged unauthorised use and alleged historic unauthorised work’.
No structural changes
However, Mr McIntosh says that he has made no structural changes to the house since he bought it. This is supported by neighbours and real estate agents who have rented and sold the house over the last 25 years.
Responding to Council’s allegations in 2017, Mr McIntosh had his cousin seek information on any plans BSC might hold in relation to the property, and was once again told that there weren’t any. Council staff then told Mr McIntosh that he needed to install a smoke detection system that is used for dual occupancy.
‘They [Council staff] said they didn’t have plans to determine what should be there. They said I had to put in a dual occupancy smoke alarm system which I did, then I didn’t hear from them again for three years.’
Then in March this year Mr McIntosh received a restore-work order from Council, along with partial plans from 1979 when the house was raised.
‘Now, Council has suddenly produced partial plans that are slightly different to the present home, 40 years later. These approved plans included areas of the house they are demanding get demolished, but Council will not listen to reason, not compromise, will not provide answers as to why I am forced to demolish or fight for my home in court,’ says Mr McIntosh.
Council is requesting that the house be taken back to the state of the 1979 plan that has a rumpus room downstairs, that it be restored to a single dwelling, and that an area marked on the plans as storage that is now bedrooms be demolished.
‘The house is used as a single dwelling,’ says Barry’s partner, Jen Gosley.
‘The main kitchen is downstairs and we are happy to take out the kitchen upstairs to make it meet the requirements of a single dwelling, as that is just a kitchenette.’
$6,000 in fines
Having been informed that the original ‘restore works order’ was incorrect, Council have then pursued a ‘stop work order’ and a stop-use notice for the downstairs section of the building. Barry is appealing both orders, yet the Council has now issued two $3,000 fines for his failure to restore the building and his use of the downstairs area.
‘I don’t understand why Council has given me these fines,’ said Mr McIntosh.
‘I can’t go and demolish my house and appeal the order at the same time. I have complied with the law, and have not been living downstairs.
‘I have now had to borrow $30,000 from my parents to fight the fines in court and take the council’s decision to the Land and Environment Court (L&EC) to save my home.
‘The property doesn’t pose any safety risks, nor environmental concerns,’ says Mr McIntosh, who has had the house checked by professionals to ensure it meets building regulations, and has made the appropriate upgrades.
‘Council don’t want to even consider mediation in the matter, which would save myself and the Byron ratepayers $30,000 in barrister and court costs,’ said Mr McIntosh.
Mr McIntosh also requested that council consider his property under the Byron Shire Council’s Draft Unauthorised Dwelling Policy but was told it couldn’t be. However, he says he was given no reason as to why it didn’t meet the criteria.
The hearing relating to the fines is due in court on 19 October and Mr McIntosh is waiting for the date for the L&EC hearing to be confirmed.
Mr McIntosh has said that anyone who is having similar issues with Council and needs some support can contact him at: [email protected]
♦ Council has said they are unable to comment as the case is now before the court.