Adelaide City Mission and South Australian Housing Trust v South Australian Planning Commission

[1993] SASC 3942

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA DEBELLE J

CWDS
Town planning - Application for planning consent - Residential zone - development - Welfare institution - Proposed development classified as boarding house or hostel
Development Plan for City of Elizabeth and Development Control Regulations, 1982 Regs 4, 13.

HRNG ADELAIDE, 15 March 1993 #DATE 7:5:1993
Counsel for appellants Adelaide City Mission            Mr J N Wells QC with and SA Housing:                 Mr J Scanlon
Solicitors for appellant:     Ward and Partners
Respondent SAPC:             No attendance
Respondent L B Adams:         No attendance
Respondent J L Neville:        In person

ORDER
Appeal allowed.

JUDGE1 DEBELLE J The question in this appeal is whether a proposed development of land is a welfare institution as defined by Reg. 4 of the Development Control Regulations, 1982 ("the Regulations"). 2. By an application made on 31 January 1992, the South Australian Housing Trust ("the Housing Trust") applied to the South Australian Planning Commission ("the Planning Commission") for planning authorisation to develop land which it owned in Elizabeth South. Applications by the Housing Trust to develop land must be determined by the Planning Commission: see Reg. 47 and the Seventh Schedule of the Regulations. 3. The application described the proposed development as "two multiple dwellings and a detached dwelling". The proposed use was described as residential. The plans of the proposal disclose that it is intended to construct three single storey buildings on the subject land. Two of the buildings will be of the scale and proportion of a large dwelling and will comprise five bedrooms (each with en suite facilities) a kitchen, dining room, living room and laundry. The third building will be a small two bedroom dwelling. At the rear of the allotment, it is proposed to provide car parking for eleven vehicles. 4. The Housing Trust intends to lease the development to the Adelaide City Mission ("the ACM") which in turn intends to use the two larger buildings for accommodating young people who are homeless unable to live at home. The ACM intends to use the third building as a cottage for a caretaker or manager of the development. 5. The subject land is within a Residential 2C zone. The Objectives and Principles of Development Control for this zone state that development in the zone should consist primarily of detached dwellings and, in suitable areas, semi-detached dwellings, row dwellings or residential flat buildings of a medium density and no more than three storeys high. The Development Plan also lists the kinds of development which are prohibited in the zone. The prohibited uses include a welfare institution. 6. By reason of the combined effect of Regs. 13 and 50 of the Regulations the Planning Commission was required to determine the nature of the proposed development and, having done so, to deal with the application on the basis of that determination. The Planning Commission dealt with the application on the footing that it was a multiple dwelling. It was, therefore, a use which was neither permitted nor prohibited by the Development Plan and, as such, required the approval of the Planning Commission. It was also a development to which s.53 of the Planning Act, 1982 applied. The Planning Commission gave notice pursuant to s.53 and received a substantial number of objections opposing the development. On 3 August 1982 the Commission gave notice to the Housing Trust that it had approved the development. From that decision, the City of Elizabeth and two of the residents who had objected to the proposal appealed to the Planning Appeal Tribunal. The City of Elizabeth withdrew its appeal shortly before the hearing. 7. The Tribunal decided that, subject to certain conditions, the proposal merited planning approval. However, it decided also that the proposal should be classified, not as a multiple dwelling, but as a welfare institution as defined by the Regulations. Because a welfare institution is a prohibited development in the Residential 2C zone, the Planning Commission should have complied with the procedural requirements of s.47(6) of the Planning Act, 1982. Since the required procedure had not been observed, the Commission had no authority to approve the development application. On 21 December 1992, the Tribunal adjourned the hearing of the appeal to enable the Planning Commission to seek the belated concurrence to the proposal of both the Minister and the Corporation of the City of Elizabeth pursuant to s.47(6). If both concurred in the proposal, the Tribunal would then have exercised its powers under s.35 of the Act and approved the development. The Council refused to concur in the proposal. The Tribunal was, therefore, required to quash the approval granted by the Planning Commission: Craig v Corporation of City of Burnside (unreported decision of Jacobs J delivered 17 September 1986, Judgment No 9827). On 8 February 1993, the Tribunal published its decision quashing the approval granted by the Planning Commission. 8. The ACM and the Housing Trust have both appealed from the decision of the Tribunal. The only issue on this appeal was whether the proposed development was a welfare institution. No argument was advanced on the question whether the Tribunal had erred in holding that the proposal otherwise merited planning approval. It is, however, necessary to consider that question. As this Court has frequently observed, it will be slow to overrule a decision of the Tribunal based on the planning merits of a proposal and will do so only in exceptional circumstances where the Tribunal has plainly made an identifiable and egregious blunder, or has misdirected itself in law, or the circumstances are, in some other respects, quite exceptional: Transfield (Adelaide) Pty Ltd v City of Port Augusta (1982) 29 SASR 467, 480; Town of Walkerville v Adelaide Clinic Holdings Pty ltd (1985) 38 SASR 161 and Penley v DC of Murray Bridge
(1992) 163 LSJS 128. The question whether the proposed development merited planning approval involved purely planning considerations. There are a number of features which justified the Tribunal's conclusion. In my view, this court should not, therefore, interfere with that part of the Tribunal's decision which held that, apart from the question whether it is a welfare institution, the proposed development merited planning approval. 9. The question then is whether the proposed development should be characterised as a welfare institution. Before dealing with that question, it is convenient to note in greater detail what the ACM intends to do at the proposed premises. The Tribunal found that the ACM is a well-known charitable organisation in South Australia. It is a branch of Mission Australia. The evidence was that its activities include assisting families in crisis, providing training for employment for persons who have been long unemployed, and providing drug and alcohol rehabilitation programmes for young people. On any view, whether or not it is a charitable organisation within the strict legal sense, it is certainly a benevolent institution. 10. As already mentioned, the ACM proposes to accommodate ten young people without homes in the new facility. The desire is to house them on a medium to long term basis of six to eighteen months. Short term crisis accommodation will not be provided. The age of the occupants will range from fifteen to twenty-one years. The funds to construct the facility are to be provided by the Federal Government. The ACM will furnish the building at its own cost. In addition to that cost, the ACM anticipates that it will incur an annual operating loss of $16,000 to $17,000. The residents will each be requested to pay approximately $70 per week for the accommodation. The ACM believes that to be a reasonable fee for the accommodation and other facilities provided. It believes that it approximates current market value for this type of accommodation. In addition to providing the accommodation, the ACM will seek to provide a home environment as close as is reasonably practicable to a normal home for the young people living in the two five-bedroom residences. On each evening on weekdays, a cooked meal will be provided. To a limited extent, the caretaker/manager or that person's spouse will seek to fulfil some of the functions of a parent by seeking to guide, counsel and advise the young people, teach them some living skills, and impose such discipline and control as is necessary to maintain harmony and keep order among those living in the premises. Formal counselling will not be provided. The ACM believes that in providing this accommodation it is answering what it calls a desperate need in this community. 11. The inquiry for the purpose of determining the nature of the proposed development pursuant to Reg. 13 may involve an examination of the nature of any building which it is proposed to construct on the land and the intended use of that building on the land. It might often be a question of fact and degree whether the proposed development in fact constitutes one kind of development as opposed to another: Lizzio v Ryde M.C. (1983) 155 CLR 211, 217; Penrith CC v Waste Management Authority (1990) 71 LGRA 376, 384. As Stephen J observed in Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council
(1980) 145 CLR 485 at 507 to 508, this inquiry should not involve a meticulous examination of the details of the likely activities to be conducted on the land or any precise cataloguing of them but, instead, should be an inquiry as to what according to ordinary terminology is the appropriate designation of the use to be made of the land or buildings. A useful criterion to apply is that which would appeal to practical minds as appropriate in the context of town planning legislation: see also Shire of Perth v O'Keefe (1964) 110 CLR

1. , 535. 12. For the purpose of determining whether a development or any class of development is permitted, either absolutely or conditionally, or is prohibited by the Principles of Development Control embodied in the Development Plan, Reg. 4 of the Regulations defines a number of words and expressions. These include many types of land use. The application for planning consent described the development proposed in this case as "a multiple dwelling". In my view, the Planning Appeal Tribunal was correct in deciding that the Planning Commission had erred in characterising the development as a "multiple dwelling". Reg. 4 defines a "multiple dwelling" to mean "one dwelling occupied by more than five persons who live independently of one another and share common facilities within that dwelling". A "dwelling" is in turn defined to mean "a building or part of a building used a     s a self-contained residence". The proposed development consisted of three buildings, none of which was intended to be occupied by more than five persons living independently of one another. However, while strictly speaking the proposal was not a multiple dwelling as defined, it is fair to say that the two larger buildings were each in the nature of a multiple dwelling. 13. In my view, each of the two larger buildings is either a boarding house or hostel. The Regulations do not define either a boarding house or a hostel. The Macquarie Dictionary defines a "boarding house" to mean "a place, usually a home, at which board is furnished, often with lodging." It defines a "hostel" to mean "a supervised place of accommodation, usually supplying board and lodging, provided at a comparatively low cost, as one for students, nurses or the like." It is unnecessary for present purposes to determine whether the two larger buildings are either a boarding house or a hostel. According to ordinary terminology, the proposed development is a small group of buildings of residential scale providing either boarding house or hostel style accommodation with a dwelling to house a caretaker or manager. Is the development a welfare institution? Reg. 4 defines a "welfare institution" to mean:
       "an institution for the care and maintenance of children, the aged or
       the infirm, or a benevolent institution, but does not include a
   reformative or penal institution (whether for children or adults)". 14. The definition refers to at least four kinds of institution. The proposed development is neither an institution for the care and maintenance of the aged nor of the infirm. The proposed development is intended to cater for young people aged between 15 and 21 years. Whatever meaning is to be ascribed to the word "children" in this definition, it must at least exclude those over the age of 18 years. Given the mix of ages to be accommodated, I do not think it is reasonable to define the development as an institution for the care and maintenance of children. The question then is whether the proposed development is a benevolent institution. 15. The definition is not at all helpful. At the outset, it suffers from the use of words or expressions which are themselves imprecise. For example, the word "institution" is a word of wide denotation and its meaning will depend on its context: Stratton v Simpson (1970) 125 CLR 138, 144, 159. As Gibbs J said in Stratton v Simpson at 158: "In its ordinary sense 'institution' means an establishment, organisation, or association instituted for the promotion of some object, especially one of public utility, religious, charitable, educational, etc" (The Shorter Oxford English Dictionary). 16. The types of institution, therefore, range from benevolent or charitable institutions to non-benevolent or commercial organisations. There is also an inherent want of precision in the word "benevolent": Attorney-General for New Zealand v New Zealand Insurance Co Limited (1936) 3 All ER 888. In some cases the word "benevolent" has been taken to include "charitable": for example, see Re Parker (1949) VLR 133. In other cases, the words "charitable" and "benevolent" have been held to have different, although overlapping, meanings: see Chichester Diocesan Fund and Board of Finance (Inc) v Simpson (1944) AC
   341. In this last mentioned decision, Viscount Simon L.C. said at page 348 that it was impossible "to decide with accuracy the ambit of that expression". 17. In Perpetual Trustee Co Ltd v Federal Commissioner of Taxation (1931) 45 CLR 224 at 232 Starke J defined a public benevolent institution to mean "an institution organised for the relief of poverty, sickness, destitution or helplessness": see also Dixon J at 233 and Evatt J at 235. The expression "benevolent institution", therefore, has a denotation wide enough to include many different kinds of land use. It may include, for example, a school, a child minding centre, a hospital, a nursing home, a home for children, a home for aged persons, a home for released prisoners or other persons in need of assistance or care. There are many other possible land uses which might readily fall under the general rubric of a benevolent institution. 18. A further difficulty is that a number of benevolent institutions are changing the manner in which they deliver their assistance or services to the community. Large institutional buildings typical of those built in the Victorian era are being replaced by smaller premises. The present case is an instance of an intention to provide assistance to homeless young people in an environment more like an ordinary home than a large institution. 19. The next difficulty is that, unlike most of the definitions contained in Reg. 4, this definition is not descriptive of a use to which land is or might be put or of an activity which or might be conducted upon the land: cf Franceschini v Melbourne and Metropolitan Board of Works (1980) 57 LGRA 284, 289. The definition might be said to describe the purpose for which land might be used. If that is its intention, it will be very difficult to apply the definition because of the wide range of purposes to which a benevolent institution might put land or buildings. That difficulty will be compounded by reason of the fact that both a benevolent institution and a benevolent institution might each use land in the same way. It is not the intention of the definition to state that the use of land or a building by a welfare institution has the consequence that the land or the building is a welfare institution. If that were so, the use of an office by a benevolent institution would mean that the office was a welfare institution even though it was used for no other purpose than an office. That proposition has only to be stated to be rejected. Similarly, if a benevolent institution owned land separate and apart from any building owned by it, which it developed and used as a grassed recreation area, the land would not be a welfare institution. It would always be a recreation area. In other words, the nature of a development will be determined by the features of the development and not by the features of the developer. It might be necessary to examine the nature of the activities conducted by the developer but only for the purpose of understanding the nature of the activities intended to be conducted on the subject land. The fact that the ACM is a benevolent institution does not necessarily mean that the proposed development will be used as a welfare institution. 20. The difficulties inherent in the fact that both benevolent and non-benevolent institutions might use land in the same way can be illustrated in another way. Let it be assumed that both a benevolent institution and a non- benevolent institution seek to establish a nursing home of identical size, shape and construction and providing the same services. From a town planning point of view, the implications of each proposal are the same. They do not alter merely because the user will be a benevolent institution in one case but not in the other. 21. There is another aspect of the same point. A benevolent institution will often, if not as a general rule, provide its services at no cost or at a substantially reduced cost: see Evatt J in Perpetual Trustee Co Ltd v Federal Commissioner of Taxation (supra) at 235. Yet, it might be providing the same kind of services or using land or buildings in the same way as another organisation which charges fees which reflect the full cost of the services provided. A nursing home is nonetheless a nursing home because services or accommodation are provided at no cost or at a reduced cost or at full cost. Similarly, a hostel is nonetheless a hostel if the accommodation is provided at no charge or for a fee. In an earlier decision in this jurisdiction, Wells J borrowed a facon de parler from Gertrude Stein: City of Marion v Lady Becker
   (1973) 6 SASR 13, 19. If I may be pardoned for following his example, a hostel is a hostel is a hostel just as a nursing home is a nursing home is a nursing home. In either case, the use of the land or buildings involves the same planning issues. The nature of the use of premises does not depend on whether fees are charged. The town planning implications of the development do not alter because a fee is charged in one case but not in another just as they do not alter because the developer is a benevolent institution in one case but not in another. 22. In addition it must be remembered that the meaning of the expression "welfare institution" or "benevolent institution" must be determined in the context of planning legislation. The meaning of those expressions in other contexts may not always be helpful. When their meaning or application is being determined in the context of revenue law or the law of trusts, it will be necessary to determine the nature and purpose of the relevant institution in an organizational sense, that is to say, it will be necessary to determine its objects and the manner in which it conduct its activities. Different issues require consideration when applying the definitions used in the Development Control Regulations. As the opening words of Reg. 4 state, the definitions are for the purpose of determining the nature of the proposed development and whether it is a permitted or prohibited use. 23. Planning law is concerned with the implications of a particular land use, the traffic likely to be generated by the proposal, the adequacy of carparking, the height or bulk of the building in relation to the land on which it is constructed, the nature of existing development in the locality, the impact of the proposal on the amenities of the locality and all other factors relevant to an assessment whether the proposal should be permitted. The decision-maker is more concerned with the features of the development than with the organizational structure of the developer. 24. How, then, is the definition to be understood and applied? The words used in this definition are not terms of art nor are they being used in any technical sense. They must be understood according to their meaning in ordinary usage. There is an emphasis in the definition upon the word "institution". As the Oxford English Dictionary notes, the word "institution" is popularly applied to a building appropriated to the work of an institution, a usage which is also noted in the second meaning attributed to the word in the Macquarie Dictionary which defines "institution" in these terms:
       "1. An organisation or establishment for the promotion of
       a particular object, usually one for some public, educational,
       charitable or similar purpose.
       2. A building used for such work, as a college, school,
       hospital, mental hospital, or the like." 25. As already noted, the definition of "welfare institution" does not define a use of land or buildings and it does not define the purpose for which the land or buildings might be used. Given that the same town planning issues arise when land is used for the same purpose by either a benevolent or non-benevolent institution, it is reasonable to conclude that the definition is intended to refer to a building or complex of buildings used by an institution. That is the only work left for the definition. It is intended to refer to a large building or complex of buildings of an institutional character. But it is still necessary to determine the type of buildings to which the definition refers. That is a meaning which accords with the ordinary meaning of "institution". 26. It is true that the character of a land use is not necessarily to be determined by the size of the intended development. A nursing home is still a nursing home, whether it be relatively small or a very large complex. However, it is reasonable to expect that the larger the proposed development the greater will be its impact upon adjoining development and upon the amenity of the locality generally. It is likely that it will generate larger volumes of traffic and greater demands for carparking. The bulk or size of the buildings may adversely affect adjoining property. The example of a nursing home is useful. Some nursing homes are quite small. They are often large houses which have been converted for the purpose and are not out of place in a residential area. Others are very large complexes and, because of their institutional appearance or their size and bulk, are quite out of place in a residential area. In the final analysis it will be a question of fact or degree whether the proposed building will be institutional in nature. The factors to which regard should be had might include the design and configuration of the building, its size and bulk and whether there is a group or complex of buildings. The particular type of institutional use proposed might also be a relevant factor. I do not intend to state an exclusive list. An exercise of judgment will be required. Borderline cases will, therefore, arise on which opinions may legitimately differ: Shire of Perth v O'Keefe
   (1963) 110 CLR 529, 535. Whether the proposed development is a welfare institution will be a question of fact and not a question of law: Brutus v Cozens (1973) AC 854; Franceschini v Melbourne and Metropolitan Board of Works (supra) at 290. 27. As already mentioned, the buildings in this small complex are of a residential scale and proportion. The development does not have an institutional character or appearance. Further, I think that the number of persons to be accommodated they way they will be cared for is consistent with describing the premises as an institution: cf. Lorna Hodgkinson Sunshine Home v Lane Cove M.C. (1979) 38 LGRA 282, 287. 28. For all of these reasons, I think that the proposed development is not a welfare institution as defined in Reg. 4. 29. It would be a desirable reform of Reg. 4 to repeal the definition of "welfare institution". The difficulties involved in applying the definition have been mentioned. Further, there is little, if any, useful work for the definition to do. The repeal of the definition would also reduce the potential for anomalies. If the definition is repealed, those uses to which welfare institutions put land which are not permitted uses would require planning consent so that it would always be possible for either councils or the Planning Commission to determine whether it is appropriate to permit a particular development and thus regulate and control where these kinds of developments should be located. The relevant planning authority could then focus its attention on the planning merits or otherwise of the particular land use proposed instead of being distracted by considerations of whether or not the proposal is a welfare institution. 30. For all of these reasons, the appeal is allowed.