Black Hill Residents Group Incorporated v Marist Youth Care Limited (t/as Marist180) (No 5)

[2021] NSWLEC 43

Land and Environment Court

New South Wales

Medium Neutral Citation:

Black Hill Residents Group Incorporated v Marist Youth Care Limited (t/as Marist180) (No 5) [2021] NSWLEC 43

Hearing dates:

19-21 April 2021

Date of orders:

17 May 2021

Decision date:

17 May 2021

Jurisdiction:

Class 4

Before:

Pain J

Decision:

(1) The second further amended summons dated 17 December 2019 is dismissed.

(2) Costs are reserved.

Catchwords:

CIVIL ENFORCEMENT – no breach of Environmental Planning and Assessment Act 1979 (NSW) in operation of transitional group home without development consent – characterisation of purpose of activity at residential property in environmental living zone – transitional group home carried out on behalf of a public authority – summons dismissed

Legislation Cited:

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)

Children and Young Persons (Care and Protection) Act 1998 (NSW) ss 3, 8, 15, 17, 18, 79, Ch 8 (ss 135, 135A, 136, 137, 139, 140, 141, 143, 144, 145, 146, 147, 148, 149, 164), ss 249, 250

Children and Young Persons (Care and Protection) Regulation 2012 (NSW) Pt 6 Div 4

Children’s Guardian Act 2019 (NSW) ss 72, 82

Environmental Planning and Assessment Act 1979 (NSW) Pt 4, Pt 5

Government Information (Public Access) Act 2009 (NSW)

Newcastle Local Environmental Plan 2012 clause 2.3, Land Use Table, Dictionary

State Environmental Planning Policy (Affordable Rental Housing) 2009 cll 3, 8, 42, 43

Cases Cited:

Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404

Burwood Area Community Housing Ltd v Sutherland Shire Council (2006) 146 LGERA 91; [2006] NSWLEC 313

CB Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270

Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114

Citizens Airport Environment Association Inc v Maritime Services Board (1993) 30 NSWLR 207

Citizens Airport Environment Association Inc v Maritime Services Board (1992) 78 LGERA 57

Dooralong Residents Action Group Pty Limited v Wyong Shire Council (2011) 186 LGERA 274; [2011] NSWLEC 251

Egan v Hawkesbury City Council (1993) 79 LGERA 321

Hawkesbury City Council v Sammut (2002) 119 LGERA 171; [2002] NSWCA 18

Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 31 NSWLR 106

North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 16 NSWLR 50

Penrith Waste Services Pty Ltd v Penrith City Council (1998) 101 LGERA 98

R v Portus; Ex parte Federated Clerks Union of Australia (1949) 79 CLR 428; [1949] HCA 53

R v Toohey; Ex parte Attorney-General (NT) (1980) 145 CLR 374; [1980] HCA 2

Shire of Perth v O'Keefe (1964) 110 CLR 529; [1964] HCA 37

Woolworths Ltd v Pallas Newco (2004) 61 NSWLR 707; [2004] NSWCA 422

Texts Cited:

G E Dal Pont, Law of Agency (4th ed, 2020, Lexis Nexis Australia)

Macquarie Dictionary online ed accessed 13 May 2021

Peter Watts, Bowstead and Reynolds on Agency (22nd ed, 2021, Sweet & Maxwell)

Category:

Principal judgment

Parties:

Black Hill Residents Group Incorporated (Applicant)
Marist Youth Care Limited (t/as Marist180) (First Respondent)
Minister for Families, Communities and Disability Services (Second Respondent)

Representation:

COUNSEL:
T Hale SC and P Hart (Applicant)
P Tomasetti SC and J Doyle (First Respondent)
J McKelvey and J Farrell (Second Respondent)

SOLICITORS:
Nicholas Dan (Applicant)
Colin Biggers & Paisley (First Respondent)
Crown Solicitor’s Office (Second Respondent)

File Number(s):

19/159914

Judgment

1. The Applicant Black Hill Residents Group Incorporated has commenced civil enforcement proceedings to restrain the First Respondent Marist Youth Care Limited (t/as Marist180) (Marist) from carrying out an activity at residential premises in Black Hill (the Property). The Applicant argues that the activity requires development consent under the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) because, firstly, the use is not correctly characterised as a transitional group home as defined in cl 42(1) of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP). Secondly, the activity is not being carried out “on behalf of a public authority” for the purposes of cl 43(1)(a) of the ARH SEPP. The Property is zoned E4 Environmental Living (E4 zone) pursuant to the Newcastle Local Environmental Plan 2012 (Newcastle LEP).

2. Marist bought the Property and has undertaken work on the existing dwelling to enable it to be used for the activity of an intensive therapeutic transitional care (ITTC) facility and that use has commenced. Marist has entered into an agreement with the Department of Family and Community Services (FACS) to provide ITTC services inter alia. FACS is now known as the Department of Communities and Justice (DCJ). It is referred to throughout as FACS.

3. Pursuant to the second further amended summons dated 17 December 2019, the Applicant seeks:

1.   A declaration that the first respondent has carried out and/or proposes to carry out the Development and the Newcastle Intensive Therapeutic Transitional Care Hub in breach of sections 4.3 and/or 4.2 of the EPA Act.

3.   An order that the first respondent (including by itself, its servants, agents, contractors and invitees) be restrained from:

(a)   Using the Land to provide medical, professional health care services or other services relating to the maintenance or improvement of the health, or the restoration to health, of persons or the prevention of disease in or treatment or injury to a person.

(b)   Using the Land for the purpose of administration, clerical, technical, professional or similar activities.

(c)   Excluding children under care of the Minister, permitting any person other than a manager to reside upon the Land.

(d)   Using the Land for any other purpose which requires development consent or which is prohibited development under the EPA Act.

Until development consent under the EPA Act for that use is obtained.

…

Planning legislation/instruments

Environmental Planning and Assessment Act 1979 (NSW)

4. Relevant sections of the EPA Act provide:

Part 4 Development assessment and consent

Division 4.1 Carrying out of development—with consent, without consent and prohibited

…

4.2   Development that needs consent

(1)   General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless—

(a)   such a consent has been obtained and is in force, and

(b)   the development is carried out in accordance with the consent and the instrument.

(2)   For the purposes of subsection (1), development consent may be obtained—

(a)   by the making of a determination by a consent authority to grant development consent, or

(b)   in the case of complying development, by the issue of a complying development certificate.

…

4.3   Development that is prohibited

If an environmental planning instrument provides that—

(a)   specified development is prohibited on land to which the provision applies, or

(b)   development cannot be carried out on land with or without development consent,

a person must not carry out the development on the land.

State Environmental Planning Policy (Affordable Rental Housing) 2009

5. Relevant clauses of the ARH SEPP provide:

Part 1 Preliminary

…

3   Aims of Policy

The aims of this Policy are as follows—

(a)   to provide a consistent planning regime for the provision of affordable rental housing,

(b)   to facilitate the effective delivery of new affordable rental housing by providing incentives by way of expanded zoning permissibility, floor space ratio bonuses and non-discretionary development standards,

(c)   to facilitate the retention and mitigate the loss of existing affordable rental housing,

(d)   to employ a balanced approach between obligations for retaining and mitigating the loss of existing affordable rental housing, and incentives for the development of new affordable rental housing,

(e)   to facilitate an expanded role for not-for-profit-providers of affordable rental housing,

(f)   to support local business centres by providing affordable rental housing for workers close to places of work,

(g)   to facilitate the development of housing for the homeless and other disadvantaged people who may require support services, including group homes and supportive accommodation.

…

8   Relationship with other environmental planning instruments

If there is an inconsistency between this Policy and any other environmental planning instrument, whether made before or after the commencement of this Policy, this Policy prevails to the extent of the inconsistency.

Part 2 New affordable rental housing

…

Division 7 Group homes

42   Definitions

(1)   In this Division—

group home means a permanent group home or a transitional group home.

…

prescribed zone means—

(a)   any of the following land use zones or a land use zone that is equivalent to any of those zones—

(i)   Zone R1 General Residential,

(ii)   Zone R2 Low Density Residential,

(iii)   Zone R3 Medium Density Residential,

(iv)   Zone R4 High Density Residential,

(v)   Zone B4 Mixed Use,

(vi)   Zone SP1 Special Activities,

(vii)   Zone SP2 Infrastructure, and

(b)   any other zone in which development for the purpose of dwellings, dwelling houses or multi dwelling housing may be carried out with or without consent under an environmental planning instrument.

transitional group home means a dwelling—

(a)   that is occupied by persons as single household with or without paid supervision or care and whether or not those persons are related or payment for board and lodging is required, and

(b)   that is used to provide temporary accommodation for the relief or rehabilitation of people with a disability or for drug or alcohol rehabilitation purposes, or that is used to provide half-way accommodation for persons formerly living in institutions or temporary accommodation comprising refuges for men, women or young people,

but does not include development to which State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 applies.

…

43 Development in prescribed zones

(1)   Development for the purpose of a permanent group home or a transitional group home on land in a prescribed zone may be carried out—

(a)   without consent if the development does not result in more than 10 bedrooms being within one or more group homes on a site and the development is carried out by or on behalf of a public authority, or

(b)   with consent in any other case.

(2) Division 1 of Part 2 of State Environmental Planning Policy (Infrastructure) 2007 applies in respect of development carried out by or on behalf of a public authority under subclause (1) and, in the application of that Division, any reference in that Division to that Policy is taken to be a reference to this clause.

Newcastle Local Environmental Plan 2012

6. Relevant clauses of the Newcastle LEP provide:

Part 2 Permitted or prohibited development

…

2.3   Zone objectives and Land Use Table

…

(3)   In the Land Use Table at the end of this Part—

(a)   a reference to a type of building or other thing is a reference to development for the purposes of that type of building or other thing, and

(b)   a reference to a type of building or other thing does not include (despite any definition in this Plan) a reference to a type of building or other thing referred to separately in the Land Use Table in relation to the same zone.

(4)   This clause is subject to the other provisions of this Plan.

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Land Use Table

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Zone E4   Environmental Living

1   Objectives of zone

•   To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.

•   To ensure that residential development does not have an adverse effect on those values.

•   To conserve the rural or bushland character and the biodiversity or other conservation values of the land.

•   To provide for the development of land for purposes that will not, or will be unlikely to, prejudice its possible future development for urban purposes or its environmental conservation.

2   Permitted without consent

Environmental protection works; Home occupations

3   Permitted with consent

Agriculture; Animal boarding or training establishments; Bed and breakfast accommodation; Camping grounds; Caravan parks; Centre-based child care facilities; Community facilities; Dwelling houses; Emergency services facilities; Environmental facilities; Farm buildings; Flood mitigation works; Home-based child care; Home businesses; Information and education facilities; Landscaping material supplies; Neighbourhood shops; Oyster aquaculture; Passenger transport facilities; Plant nurseries; Pond-based aquaculture; Recreation areas; Research stations; Respite day care centres; Roads; Roadside stalls; Secondary dwellings; Tank-based aquaculture

4   Prohibited

Industries; Intensive livestock agriculture; Service stations; Warehouse or distribution centres; Any other development not specified in item 2 or 3

…

Dictionary

…

community facility means a building or place—

(a)   owned or controlled by a public authority or non-profit community organisation, and

(b)   used for the physical, social, cultural or intellectual development or welfare of the community,

but does not include an educational establishment, hospital, retail premises, place of public worship or residential accommodation.

…

dwelling 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

…

group home means a permanent group home or a transitional group home.

…

group home (transitional) or transitional group home means a dwelling—

(a)   that is occupied by persons as a single household with or without paid supervision or care and whether or not those persons are related or payment for board and lodging is required, and

(b)   that is used to provide temporary accommodation for the relief or rehabilitation of people with a disability or for drug or alcohol rehabilitation purposes, or that is used to provide half-way accommodation for persons formerly living in institutions or temporary accommodation comprising refuges for men, women or young people,

but does not include development to which State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 applies.

…

health care professional means any person registered under an Act for the purpose of providing health care.

health consulting rooms means premises comprising one or more rooms within (or within the curtilage of) a dwelling house used by not more than 3 health care professionals at any one time.

health services facility means a building or place used to provide medical or other services relating to the maintenance or improvement of the health, or the restoration to health, of persons or the prevention of disease in or treatment of injury to persons, and includes any of the following—

(a)   a medical centre,

(b)   community health service facilities,

(c)   health consulting rooms,

(d)   patient transport facilities, including helipads and ambulance facilities,

(e)   hospital.

…

hospital means a building or place used for the purpose of providing professional health care services (such as preventative or convalescent care, diagnosis, medical or surgical treatment, psychiatric care or care for people with disabilities, or counselling services provided by health care professionals) to people admitted as in-patients (whether or not out-patients are also cared for or treated there), and includes ancillary facilities for (or that consist of) any of the following—

(a)   day surgery, day procedures or health consulting rooms,

(b)   accommodation for nurses or other health care workers,

(c)   accommodation for persons receiving health care or for their visitors,

(d)   shops, kiosks, restaurants or cafes or take away food and drink premises,

(e)   patient transport facilities, including helipads, ambulance facilities and car parking,

(f)   educational purposes or any other health-related use,

(g)   research purposes (whether or not carried out by hospital staff or health care workers or for commercial purposes),

(h)   chapels,

(i)   hospices,

(j)   mortuaries.

…

office premises means a building or place used for the purpose of administrative, clerical, technical, professional or similar activities that do not include dealing with members of the public at the building or place on a direct and regular basis, except where such dealing is a minor activity (by appointment) that is ancillary to the main purpose for which the building or place is used.

7. The definition of “prescribed zone” (b) for the purposes of the definition in cl 42 of the ARH SEPP applies to the E4 zone because houses are permitted in that zone. Under cl 43(1)(a) of the ARH SEPP a transitional group home on land in a prescribed zone can be carried out without development consent if the home has less than 10 bedrooms (as the dwelling on the Property does) and is carried out by or on behalf of a public authority. The Applicant argues that the activity is not being carried out “on behalf of” a public authority.

8. The Applicant accepts that FACS is a public authority.

Care legislation

Children and Young Persons (Care and Protection) Act 1998 (NSW)

9. Relevant sections of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (Care Act) as in force at 4 February 2019 provide:

Chapter 1 Preliminary

…

3   Definitions

(1)   In this Act:

…

designated agency—see section 139.

…

out-of-home care—see section 135.

primary care-giver, in relation to a child or young person, means each person who is primarily responsible for the care and control, including the day-to-day care and control, of the child or young person (whether or not that person is the person with parental responsibility or care responsibility for the child or young person).

…

Chapter 2 Objects, principles and responsibilities

Part 1 Objects and principles

…

8   What are the objects of this Act?

The objects of this Act are to provide:

(a)   that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and

(a1)   recognition that the primary means of providing for the safety, welfare and well-being of children and young persons is by providing them with long-term, safe, nurturing, stable and secure environments through permanent placement in accordance with the permanent placement principles, and

(b)   that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and

(c)   that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment.

…

Part 3 Roles of the Minister and Secretary

15   General role of the Minister

The Minister is to promote a partnership approach between the government, non-government agencies, families, corporations, business agencies and the community in taking responsibility for and dealing with children and young persons who are in need of care and protection under this Act.

…

17   Secretary’s request for services from other agencies

(1)   In deciding what action should be taken to promote and safeguard the safety, welfare and well-being of a child or young person, the Secretary may request a government department or agency, or a non-government agency in receipt of government funding, to provide services to the child or young person or to his or her family.

(2)   Without limiting the generality of subsection (1), the Secretary may request a government department or agency, or a non-government agency in receipt of government funding, to provide prioritised access to services to a child or young person who is at risk of significant harm and to his or her family.

18   Obligation to co-operate

(1) The government department or agency, or the non-government agency, must use its best endeavours to comply with a request made to it under section 17 if it is consistent with its own responsibilities and does not unduly prejudice the discharge of its functions.

(2)   Subsection (1) does not, in the case of a non-government agency in receipt of government funding, limit any obligation imposed on the agency in accordance with the agreement under which it receives that funding.

(3)   To avoid doubt, a reference in subsection (1) to the responsibilities and functions of a department or agency includes, in the case of its provision of health services:

(a) its responsibilities under the Medicare Principles and Commitments (adopted under section 68 of the Health Services Act 1997) in the provision of public hospital services, and

(b)   its functions in clinical decision-making.

…

Chapter 5 Children’s Court proceedings

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Part 2 Care applications

…

79   Order (other than guardianship order) allocating parental responsibility

(1)   The Children’s Court may make an order under this section allocating all aspects of parental responsibility, or one or more specific aspects of parental responsibility, for a child or young person who it finds is in need of care and protection for a period specified in the order:

(a)   to one parent to the exclusion of the other, or to both parents jointly, or

(b)   solely to the Minister, or

(c)   to one or both parents and to the Minister jointly, or

(d)   to one or both parents and to another person or persons jointly, or

(e)   to the Minister and another suitable person or persons jointly, or

(f)   to a suitable person or persons jointly.

(2)   The specific aspects of parental responsibility that may be allocated by an order of the Children’s Court under subsection (1) include, but are not limited to, the following:

(a)   the residence of the child or young person,

(b)   contact,

(c)   the education and training of the child or young person,

(d)   the religious and cultural upbringing of the child or young person,

(e)   the medical and dental treatment of the child or young person.

…

Chapter 8 Out-of-home care

Part 1 Introduction

…

135   Definition and types of “out-of-home care”

(1)   For the purposes of this Act, out-of-home care means residential care and control of a child or young person that is provided:

(a)  by a person other than a parent of the child or young person, and

(b)  at a place other than the usual home of the child or young person,

whether or not for fee, gain or reward.

(2)   There are 3 types of out-of-home care for the purposes of this Act, as follows:

(a)   statutory out-of-home care—see section 135A,

(b)   supported out-of-home care—see section 135B,

(c)   voluntary out-of-home care—see section 135C.

(3)   For the purposes of this Act, out-of-home care does not include:

(a)   daily care and control of a child given by a person in the person’s capacity as an approved provider of education and care services under the Children (Education and Care Services) National Law (NSW) or the Children (Education and Care Services) Supplementary Provisions Act 2011, or

(b)   any care provided by a relative or kin of a child or young person unless:

(i)   the Minister has parental responsibility for the child or young person by virtue of an order of the Children’s Court, or

(ii)   the child or young person is in the care of the Secretary, or

(iii) it is care in respect of which the Secretary is providing support under section 153, or

(b1)   any care of a child or young person provided by a person who has parental responsibility for the child or young person under a guardianship order, or

(c)   anything prescribed by the regulations not to be out-of-home care.

(4)   However, a child or young person who is in out-of-home care does not cease to be in that care merely because the child or young person becomes subject to any care or control referred to in subsection (3).

135A   Statutory out-of-home care

(1)   Statutory out-of-home care is out-of-home care that is provided in respect of a child or young person for a period of more than 14 days—

(a)   pursuant to a care order of the Children’s Court, or

(b)   by virtue of the child or young person being a protected person.

(2)   Any statutory out-of-home care provided in respect of a child or young person is taken to commence—

(a)   immediately on the making of a care order for a period of more than 14 days in respect of the child or young person, or

(b)   in any other case—immediately the child or young person is placed with an authorised carer.

(3)   In this section, protected person means—

(a)   a person who is a ward of the Supreme Court, or subject to an order of the Supreme Court in its parens patriae jurisdiction, and of whom the Minister or the Secretary has the custody or care pursuant to an order of the Supreme Court, or

(b) a person who is under the parental responsibility of the Secretary pursuant to Part 6 (Parental responsibility for children awaiting adoption) of Chapter 4 of the Adoption Act 2000, or

(c)   a person in respect of whom the Minister or the Secretary has parental responsibility, either wholly or partially, pursuant to an order in force under the Family Law Act 1975 of the Commonwealth, or

(d) a person who, having been a person referred to in paragraph (a), (b) or (c), was in the custody of a person referred to in section 91(1)(d)(i) or (ii) of the Children (Care and Protection) Act 1987 immediately before its repeal.

136   Restriction on who may provide statutory out-of-home care

(1)   Statutory out-of-home care may be provided in respect of a child or young person only by an authorised carer.

(2)   A person, other than an authorised carer, who provides statutory out-of-home care in respect of a child or young person is guilty of an offence.

…

137 Authorised carers

(1)   In this Act, authorised carer means:

(a)   the principal officer of a designated agency, or

(b)   a person who, in accordance with the regulations, is authorised as an authorised carer by a designated agency, or

(c)   a person who, in accordance with the regulations, is otherwise authorised as an authorised carer, or

(d) subject to the regulations, a person who is assessed to be suitable to be approved to adopt a child under section 45 of the Adoption Act 2000.

…

139   Designated agencies

(1)   In this Act, designated agency means:

(a)  a Public Service agency (or part of a Public Service agency), or

(b)  an organisation (or part of an organisation) that arranges the provision of out-of-home care,

if the agency or organisation (or part of the agency or organisation) is accredited for the time being in accordance with the regulations.

(2)   The regulations may prescribe the standards with which an applicant for accreditation must comply in order to be accredited as a designated agency.

140   Supervisory responsibility of designated agency

The designated agency that places a child or young person in the out-of-home care of an authorised carer has a responsibility to supervise the placement.

141   Inability of designated agency to fulfil responsibilities

(1)   If a designated agency, other than the Department, is designated to supervise the placement of a child or young person in out-of-home care and that agency ceases to be able to fulfil its responsibilities in relation to the child or young person, the Department is to supervise the placement of the child or young person.

(1A)   The Department, in supervising the placement of a child or young person in out-of-home care under this section, does not take or assume any assets, rights or liabilities of the designated agency.

(2)   Immediately a designated agency becomes aware that it will cease to be able to fulfil its responsibilities in relation to a child or young person, it must make an application to the Children’s Court for an order to vary the out-of-home care arrangements applying to the child or young person.

…

Part 5 Arrangements during statutory or supported out-of-home care

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164   Responsibility of Minister to accommodate certain children and young persons

The Minister is responsible for the provision of accommodation for any child or young person for whom the Minister has sole parental responsibility or parental responsibility in relation to residence.

…

Chapter 17 Miscellaneous

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249   Delegation by Minister

(1) The Minister may delegate to the Secretary or any other person any of the Minister’s functions, other than this power of delegation.

(2)   A delegate may sub-delegate to any person any function delegated by the Minister if the delegate is authorised in writing to do so by the Minister.

250   Delegation by Secretary

(1)   The Secretary may delegate to any person any of the Secretary’s functions, other than:

(a)   this power of delegation, and

(b)   (Repealed)

(2)   A delegate may sub-delegate to any person any function delegated by the Secretary if the delegate is authorised in writing to do so by the Secretary.

Children’s Guardian Act 2019 (NSW)

10. The Care Act was repealed in part by the Children’s Guardian Act 2019 (NSW) (CG Act) which came into force on 1 March 2020. Relevant sections of the CG Act provide:

Part 5 Out-of-home care matters regulated by Children’s Guardian

Division 1 Preliminary

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72   Designated agencies—general

(1)   In this Act, designated agency means any of the following that are accredited under the regulations as a designated agency to provide or arrange out-of-home-care and the accreditation is in force—

(a)   a government sector agency or part of a government sector agency,

(b)   an organisation, or part of an organisation, that arranges the provision of out-of-home care.

(2)   The regulations may make provision for the accreditation process and the standards with which an applicant for accreditation must comply in order to be accredited as a designated agency.

(3)   Also, the regulations may make provision for the following—

(a)   the surrender of a designated agency’s accreditation,

(b)   the withdrawal of an application for accreditation.

(4)   The Children’s Guardian may, if in the Children’s Guardian’s opinion it is necessary to protect the safety, welfare or wellbeing of a child or class of children, decide the date on which the surrender of a designated agency’s accreditation takes effect.

(5)   The date decided by the Children’s Guardian must be no more than 6 months after the designated agency notifies the Children’s Guardian of the agency’s intention to surrender its accreditation.

(6)   The regulations may—

(a)   treat a designated agency’s failure to renew its accreditation as the surrender of the agency’s accreditation, and

(b)   make savings and transitional provisions to provide for the accreditation to remain in force until the surrender takes effect.

…

Division 3 Oversight of designated agencies

…

82   Supervisory responsibility of designated agency

A designated agency that places a child in the out-of-home care of an authorised carer has a responsibility to supervise the placement (supervisory responsibility).

Children and Young Persons (Care and Protection) Regulation 2012 (NSW)

11. Relevant provisions of the Children and Young Persons (Care and Protection) Regulation 2012 (NSW) (Care Regulation) provide:

Part 6 Out-of-home care

…

Division 4 Accreditation as a designated agency

Subdivision 1 Accreditation

45   Application for accreditation

(1)   An organisation or a Public Service agency (an applicant) may apply in writing to the Children’s Guardian for—

(a)   accreditation as a designated agency, or

(b)   the renewal of accreditation as a designated agency.

…

Subdivision 3 Accreditation administration

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65   Conditions on accreditation and process of accreditation

(1)   An accreditation is subject to the conditions set out in Schedule 3.

(2)   The Children’s Guardian may impose such other reasonable conditions as the Children’s Guardian sees fit on an accreditation, and may vary or revoke such conditions, by notice in writing given to the designated agency.

(3)   Without limiting subclause (2), the Children’s Guardian may impose a condition prohibiting the designated agency from providing, arranging or supervising voluntary out-of-home care.

(4)   The Children’s Guardian may impose such reasonable conditions as the Children’s Guardian sees fit on the process of accreditation (including accreditation by way of a transfer under clause 57), and may vary or revoke such conditions, by notice in writing given to the applicant.

(5)   If an accreditation is transferred, a copy of the notice given under subclause (4) is to be given to the transferee.

(6)   If the Children’s Guardian is satisfied a condition should be imposed under subclause (2) on a departmental designated agency, the Children’s Guardian must first report to the Minister on the need to impose the condition.

(7)   A condition imposed under this clause may authorise any matter or thing to be from time to time determined or applied by any specified person or body.

…

12. Section 139 of the Care Act, now s 72 of the CG Act, provides for the accreditation of “designated agencies”. The Care Regulation specifies in Pt 6 Div 4 how such bodies are to be accredited.

Grounds in second further amended summons dated 17 December 2019

13. The second further amended summons dated 17 December 2019 relied on by the Applicant states in the first ground that from about January 2019 to April 2019, Marist carried out building works on the land to facilitate the establishment and use of a Newcastle ITTC hub. The Newcastle ITTC hub is defined as:

a.   A facility for Intensive Therapeutic Transitional Care as that term is defined in the agreement styled as “Program Level Agreement” between the first and second respondents entered into on or about 6 February 2019;

b.   A facility which must meet the ITTC Service Requirements as set out in clause 7.6.5 of the Program Level Agreement including in respect of staffing, therapeutic specialists to provide services “within the ITTC Unit where possible” and a multidisciplinary specialist in-house team;

c.   As described in the document styled as a “Briefing for Executive Director for approval of an Intensive Therapeutic Transitional Care Facility (ITTC) – Marist 180 being Exhibit 1 to the affidavit of Grant Long affirmed on 31 May 2019.

14. In relation to characterisation the second further amended summons states:

3C.   The Newcastle Intensive Therapeutic Transitional Care Hub:

(i)   Constitutes development of the Land as “health services facilities” within the meaning of the LEP;

(ii)   Constitutes development of the Land as “office premises” within the meaning of the LEP; and/or;

(iii)   Constitutes development of the Land other than for a “transitional group home” within the meaning of the LEP and the SEPP.

3D.   Development of the types referred to in the preceding paragraph and/or each of them is prohibited is the E4 zone under the LEP.

3E.   Further or alternatively, to the extent that any part of the Newcastle Intensive Therapeutic Transitional Care Hub is not prohibited in the E4 zone under the LEP, it is development

(i)   For which consent is required under the EPA Act; and

(ii)   For which consent has not been obtained.

4.   By reason for the matters pleaded, development, being the Newcastle Intensive Therapeutic Transitional Care Hub, ITTC and the Works:

a.   Has been carried out, and/or

b.   Unless restrained by this Court will be carried out

Upon the Land by the first respondent in breach of ss 4.3 and/or s.4.2 of the EPA Act.

5.   Further or alternatively,

a.   The Newcastle intensive Therapeutic Transitional Care Hub is not a dwelling and/or;

b.   the persons that the first respondent has permitted to reside upon the Land and/or proposes to permit to reside on the Land do not and will not “occupy” any building upon the Land “as a single household”.

Within the meaning of the LEP and the SEPP.

6.   By reason of the preceding paragraph, the Newcastle Intensive Therapeutic Transitional Care Hub and no part of it constitutes a “transitional group home” for the purposes of the LEP and the SEPP.

15. The second ground in the second further amended summons states:

Transitional Group Home

7.   Alternatively to paragraphs 3C-6 above, if (but only to the extent that) the Newcastle Intensive Therapeutic Transitional Care Hub is a “transitional group home” (hereafter the Transitional Group Home) within the meaning of the LEP and the SEPP:

Clause 43(1) of the SEPP provides:

a.   Development for the purposes of a permanent group home or a transitional group home on land in a prescribed zone may be carried out:

i.   Without consent if the development does not result in more than 10 bedrooms being within one or more group homes on a site and the development is carried out by or on behalf of a public authority; or

ii.   With consent in any other case.

7A.   The Land is in a prescribed zone within the meaning of clause 43(1) of the SEPP, as defined in clause 42 of the SEPP, as development for the purposes of dwelling houses is permitted with consent in zone E4 under the LEP.

8.   The Transitional Group Home referred to above (and all building works carried out to facilitate such use constitute “development” within the meaning of section 1.5 of the EPA Act and cl 43(1) of the SEPP.

9.   No development consent within the meaning of s 1.4 of the EPA Act and cl 43(1)(b) of the SEPP has been granted for the Transitional Group Home.

10.   The Transitional Group Home is not being carried out by the first respondent on behalf of any public authority within the meaning of cl 43(1)(a) of the SEPP.

11.   By reason of the matters pleaded, the Transitional Group Home:

a.   Has been carried out, and/or

b.   Unless restrained by this Court will be carried out;

by the first respondent in breach of s 4.2 of the EPA Act.

16. At issue, firstly, is whether the activity being carried out on the Property is a transitional group home as defined in the ARH SEPP and the Newcastle LEP. While the second further amended summons refers to the Newcastle ITTC hub, little argument was devoted to this. As I discuss early in my consideration below, no evidential basis for use of the Property as a hub exists. The focus of argument was use as a transitional group home. Secondly, if the activity is a transitional group home, is it being carried out “on behalf of” the Minister.

Applicant’s evidence

Affidavits

17. The Applicant’s affidavits are all sworn or affirmed in 2019. Their relevance was said to be to the exercise of the Court’s discretion. The Applicant read the following five lay witness affidavits.

18. Ms Mandy Barton who lives immediately behind the Property swore an affidavit dated 20 May 2019 attesting that since about late April 2019, she has observed a security guard at the Property day and night. Lights from the Property shine directly as Ms Barton’s house and backyard. Ms Barton and her family are reluctant to use their bathroom and backyard due to a lack of privacy. Since February 2019 Ms Barton has observed a large number of vehicles on the Property. At one point there were 22 vehicles parked in the rear yard. There are five vehicles permanently parked in the rear yard, three staff cars there during the night and regularly eight to 12 vehicles coming and going during the day. Ms Barton has observed staff at the Property 24 hours a day. Ms Barton identified further general concerns about the future impacts of Marist’s use of the Property.

19. Ms Barton swore a second affidavit dated 4 July 2019 which included two photographs taken on 9 and 23 May 2019 showing a large number of cars parked at the Property.

20. Ms Roslyn Parr who lives on the southern side of the Property with her son who has cerebral palsy swore an affidavit dated 20 May 2019. In early February 2019, Ms Parr saw a machine filling a dam on the Property with dirt. Ms Parr attested that she has lost a lot of privacy. The Property has a long gravel driveway which goes down the side of Ms Parr’s property. Vehicles come and go from the Property day and night. One of the staff vehicles is a motorcycle which is extremely noisy. Staff are at the Property 24 hours a day and have been working there since early February 2019. On most days there are between 10 and 20 cars going in and out of the Property. Vehicles travelling on the gravel driveway are noisy, their headlights shine into Ms Parr’s property and they blow dust into Ms Parr’s house. Since on or about 19 April 2019, Ms Parr has observed a security guard walking up and down the boundary between the properties with a torch. Ms Parr identified further general concerns about the future impacts of Marist’s use of the Property.

17. Mr Brynley Hill who lives on the northern side of the Property with his two daughters who are severely autistic swore an affidavit dated 24 May 2019. Mr Hill’s daughters have no concept of stranger danger. Mr Hill was greatly concerned about the safety of his daughters living next to the Property.

18. Mr Stephen Catsicas a contract investigator engaged by Mr Hill to observe parking and traffic movements on the Property from 27-30 May 2019 swore an affidavit dated 5 July 2019. Mr Catsicas observed the Property on each day from approximately 7:00am to 5:00pm. On 27 May 2019 Mr Catsicas observed 41 vehicle movements entering and leaving the Property. On 28 May 2019, there were 56 vehicle movements. On 29 May 2019, there were 26 vehicle movements and at least eight persons in the house during the day. On 30 May 2019, there was at one point 22 vehicles parked on the Property and 51 vehicle movements in total.

19. Mr Grant Long, the Applicant’s former solicitor, affirmed the following four affidavits. Mr Long’s first affidavit dated 22 May 2019 outlines an information request he lodged with FACS on 12 February 2019 under the Government Information (Public Access) Act 2009 (NSW). Mr Long outlined further correspondence with Marist up to 21 May 2019. Mr Long attached a copy of Marist’s annual financial report for 30 June 2018 which listed revenue from government grants and subsidies as $20,168,527, revenue from other income as $18,789,445, and total revenue as $38,957,972. In 2018, Marist’s total expenditure was $38,871,857 and total loss was $919,296. Mr Long attached a document titled “Marist180 Final Communique” prepared by Marist in April 2019 which included the following statement: “The home was purchased in December 2018. Modifications were made in January 2019.”

20. Mr Long’s second affidavit dated 31 May 2019 exhibited a document prepared by FACS called “Briefing for Executive Director for approval of an Intensive Therapeutic Transitional Care Facility (ITTC) – Marist 180” (Briefing Document) dated 18 December 2018. The Briefing Document stated:

Topic	Approval to support the ITTC physical environment at [the Property]. Marist 180 has told FACS they will purchase this property for the Newcastle ITC Hub.
Analysis	Marist 180 have been contracted by FACS to deliver the ITTC by January 2019 in accordance with their implementation plan.
FACS has noted the floor plans (at Attachment A) and renovations proposed by Marist 180. In addition, Attachment B is a suitability checklist completed by Marist and FACS.
Marist have indicated they will not be seeking funding for the cost of renovations or modifications, but will be seeking an equivalised rental charge once the property has been purchased.

25. The Briefing Document identified risks and mitigation strategies associated with the Property including the need to fill up a pond, install new fencing and also outlined a brief background on providing intensive therapeutic care (ITC) in Newcastle. The Briefing Document included a floor plan of the main dwelling which showed a master bedroom, three bedrooms, main bathroom, a lounge, family room, kitchen, staff office and another office in the garage. A note on the floor plan indicated that the ensuite door to the master bedroom would be closed off and a new opening made so that it could be used as a second bathroom. A “Property Check List” identified minimal work to be carried out at the Property such as fencing, filling in a dam, and stated “[t]he property is very well built. The open floor plan creates a warm and welcoming atmosphere. The bedrooms are all spacious as are the bathrooms and living areas.” In relation to planning advice, the document stated “Marist 180 has liaised with The City of Newcastle Council about an exemption for development for setting up a group home. Council to provide details shortly. (FACS to provide Marist with a letter of confirmation – ITTC property specifications as was sent for ITTC Orange.”

26. Mr Long’s third affidavit dated 8 July 2019 exhibited the following documents:

1. a policy document prepared by FACS titled “Permanency Support (Out-of-Home Care) Program Description” approved on 17 March 2017. The ITC system is described in Appendix 5 which is titled “Appendix 5: Service Overview – ITC” (Permanency Support Program policy document – Appendix 5) (Ex C);

2. documents relating to construction works carried out at the Property (Ex D). No reference was made to this material in the Applicant’s submissions; and

3. documents detailing position descriptions and employment contracts of Marist employees (Ex E). No reference was made to this material in the Applicant’s submissions.

27. Mr Long’s fourth affidavit dated 13 August 2019 exhibited a confidential bundle of documents consisting of Marist’s weekly roster, staff qualifications, case notes and meeting minutes (Ex F). No reference was made to this material in the Applicant’s submissions.

Documentary evidence

28. The Applicant tendered a court book (Ex A) and a supplementary court book (Ex B). Exhibit B included Marist’s amended response to the second further amended summons dated 1 March 2021 and the Minister’s amended response to the second further amended summons dated 5 March 2021.

Marist’s evidence

Affidavits

29. Ms Madeleine Lovett Area Manager of Marist for the Newcastle region and ITTC Therapeutic Specialist affirmed an affidavit dated 30 July 2019 attesting that she inspected the Property on 12 June 2019. Ms Lovett took photographs of each of the rooms. Copies of those confidential photographs and of Ms Lovett’s curriculum vitae were tendered as Ex 1.

30. Mr Peter Monaghan CEO of Marist swore an affidavit dated 22 February 2021. Mr Monaghan’s affidavit was lengthy and has been summarised where relevant below. Mr Monaghan started in his role at Marist on 11 February 2019. Marist is a charitable organisation which applies its funding to various ends including housing for vulnerable young people.

31. Mr Monaghan identified how in his understanding Marist became a “designated agency” under the Care Act. Children or young persons who are subject to a care order made under s 79 are placed in out-of-home care. Statutory out-of-home care is defined in s 135A. Statutory out-of-home care can only be provided by an “authorised carer” under s 136. “Authorised carer” is defined in s 137 and includes someone who is a principal officer of a designated agency or who is authorised as an authorised carer by a designated agency. Mr Monaghan is Marist’s principal officer. Marist is accredited as a “designated agency” under the Care Regulation and as a result is permitted to provide statutory out-of-home care. Mr Monaghan exhibited a copy of Marist’s conditions of accreditation as a “designated agency” issued under cl 65 of the Care Regulation (Ex 2). Under s 140 of the Care Act, Marist, as a “designated agency” has the responsibility to supervise the placement of children and young persons in out-of-home care.

32. In relation to the contract with FACS, Mr Monaghan identified that Marist is currently contracted by FACS to provide ITC to vulnerable young persons. Some of the homes that Marist operates for the ITC program concentrate on providing ITTC services. The young people involved in ITC programs operated by Marist have typically been removed from situations of trauma or neglect. Qualified professionals are employed by Marist to manage a child or young person’s transition. In order to successfully achieve the intended transitional preparation without additional avoidable trauma, it is critical to simulate a conventional residential family context to the nearest extent possible. It is for that reason important that the ITTC program is delivered in a residential setting. Marist purchased the Property for the purpose of operating an ITTC home.

33. When Marist opened the Property, it did so after Mr Monaghan had reviewed correspondence dated 5 February 2019 between FACS and the City of Newcastle (Ex 2). Mr Monaghan understood that Marist would be providing ITTC services on behalf of a public authority pursuant to cl 43 of the ARH SEPP.

34. Mr Monaghan outlined the laws and requirements that Marist is bound by in its delivery of ITC and ITTC, namely legislation and regulations, policies created by legislation or regulations, NSW Government policies and Permanent Support Program policy documents as well as other requirements.

35. Mr Monaghan outlined that the ITC service system was introduced in July 2018 by the NSW Government to reform the previous out-of-home residential care system. Mr Monaghan outlined how the program is intended to work. ITTC is one of the services provided within the ITC service system.

36. Mr Monaghan outlined the ITTC services provided by Marist. The ITTC service is short-term individualised care for an expected timeframe of 13 weeks to vulnerable young persons. The ITTC home is designed and operated to mimic as close as possible a traditional family environment. ITTC services must provide a safe, nurturing and predictable home-like environment that promotes a sense of normality for the young persons. Mr Monaghan attested that when establishing an ITTC home, Marist looks for high quality properties in “good” established communities to provide the young people with an environment in which they can feel valued and safe.

37. The children and young persons accommodated at the Property live there as a single household. There are four bedrooms, two lounges, one rumpus room, one kitchen and three bathrooms. The Property can accommodate up to four children or young persons.

38. Mr Monaghan set out Marist’s current staffing arrangements. Marist employs staff to provide appropriate supervision and care to children and young persons accommodated at the Property. Mr Monaghan attested that based on his inquiries, there are generally five to seven staff members at the Property on weekdays and less on weekends. The Property is staffed 24 hours per day with at least two staff on duty all times. Between 29 April to 27 June 2019 one security guard was always present at the Property.

39. Mr Monaghan outlined how Marist carries out its obligations under various clauses in the FACS Agreement. It is common that children and young people accommodated in an ITTC home are assessed and receive treatment from professionals such as therapeutic, speech or occupational therapists. If the young person has an existing relationship with a professional, then these services are provided at the consultant’s rooms. Otherwise services are provided at the Property by members of Marist’s multi-disciplinary specialist team (MDS Team). The MDS Team currently comprises of a speech therapist and occupational therapist. The MDS Team had not visited the Property in the 12 months before Mr Monaghan swore his affidavit on 22 February 2021.

40. Mr Monaghan outlined the process of purchasing the Property. On 27 June 2018, Marist and FACS executed an earlier version of the FACS Agreement. On 21 December 2018, Marist purchased the Property for the purpose of complying with the FACS Agreement and for providing ITTC services in the Newcastle area. The Property met FACS specifications for an ITTC property. On 18 December 2018, FACS had agreed in principle that the Property was suitable for ITTC.

41. In relation to a hub Mr Monaghan attested that the Property “was never intended to be used as the primary home base for all ITC operations in Newcastle”. The phrase “Newcastle hub” is not used to refer to a site, but instead describes the Newcastle regional service undertaken by Marist. The Property has only been referred to as part of the “hub”.

42. In relation to modifications to the Property Mr Monaghan attested that a small number of modifications were made to the Property to make it compliant with the specifications for an ITTC home.

43. Mr Monaghan outlined how he has responded to concerns raised by residents about the Property since he commenced working with Marist on 11 February 2019. Mr Monaghan responded directly to concerns raised in the Applicant’s affidavits in [18]-[22] above with respect to privacy, security, noise, traffic movements, bushfire, access and fencing, the pool, and general concern regarding future impacts. Mr Monaghan attested that Marist is committed to making reasonable adjustments to address neighbour concerns.

44. Mr Monaghan identified services provided by Marist as an essential part of the NSW child protection system. The process of transitioning a child or young person in and out of care takes weeks. Marist and FACS staff are involved in the transition process. Mr Monaghan has observed that all major decisions about children in Marist’s care are made by FACS, drawing on the knowledge of Marist staff who are providing day to day care.

45. If Marist was ordered to remove young persons from the Property, it is likely that they would be sent to a motel/hotel due to the severe lack of availability of alternative suitable environments. If the Property was shutdown Marist staff employed to work at the Property would not have any work and Marist may not receive payments under the FACS Agreement.

46. Mr Monaghan identified that therapeutic specialists employed by Marist are currently permanently based in a Newcastle office. Meetings are held at this Newcastle office or virtually on Microsoft Teams. Marist’s MDS Team is permanently based in its Blacktown office.

47. The following documents exhibited to Mr Monaghan’s affidavit were also relied on (Ex 2):

1. a copy of the redacted FACS Agreement between FACS and Marist dated 5 February 2019 (FACS Agreement) extracted in [62] below; and

2. a policy document prepared by FACS titled “Permanency Support (Out-of-Home Care) Program Description” approved on 17 March 2017. The ITC system is described in Appendix 5 which is titled “Appendix 5: Service Overview – ITC” (Permanency Support Program policy document – Appendix 5). I note that this is the same as the document exhibited to Mr Long’s affidavit dated 8 July 2019 in [26(a)] above tendered as Ex C.

Examination in chief of Mr Monaghan

48. Mr Monaghan gave oral evidence that since the Property was purchased, Marist had not provided services to any young people or children pursuant to clause 7.6.6 of Schedule 1 to the FACS Agreement. Marist has had two referrals for young people pursuant to clause 7.6.6. One of those was withdrawn and the other was refused by Marist. Neither of those young people visited the Property. If Marist is required in the future to provide services to other children or young people pursuant to clause 7.6.6, those services would be provided by staff who work in Marist’s Newcastle office. They would not be provided at the Property.

Cross-examination of Mr Monaghan

49. In cross-examination, Mr Monaghan agreed that he was not present when Marist signed the FACS Agreement in early February 2019. He commenced with Marist on 11 February 2019.

50. Mr Monaghan agreed that Marist is associated with Marist Brothers and that one of the missions of Marist Brothers is the education and care of young people. The mission of Marist is consistent with the mission of Marist Brothers, realised by the carrying out of operations that are reflected in the FACS Agreement.

51. Mr Monaghan was shown Marist’s annual financial report for 30 June 2018 and agreed that in 2018 Marist received a little under $40 million in revenue. Twenty million dollars was from government grants and almost $19 million from other income. Mr Monaghan stated that the other income would have come from donations and other services such as fees for service.

52. Mr Monaghan agreed that in the financial years 2019 and 2020 Marist spent approximately $50 million annually in youth care. Mr Monaghan was asked whether the $50 million in revenue that Marist received for 2020 was divided evenly between government grants and subsidies and other income. Mr Monaghan replied, “I can’t give that with any clarity”. Mr Monaghan agreed that a large part of revenue received for 2020 would have come from funding from FACS.

53. In relation to clause 7.6.6 of Schedule 1 of the FACS Agreement, Mr Monaghan agreed that the clause required Marist to cater for up to 24 children and young people every quarter in order to support the following situations that are there described. Mr Monaghan stated that Marist runs five ITTCs in New South Wales (NSW). Mr Monaghan disagreed that clause 7.6.6 required, if called upon, Marist to support children in one of those five facilities. Mr Monaghan disagreed that Marist had been asked on two occasions pursuant to clause 7.6.6 to have two young people come to the Property in Newcastle. He stated, “there were two referrals under that clause, not to the [Property], but as part of the service in the region”.

Minister’s evidence

Affidavit evidence

54. The Minister read the following three affidavits affirmed by Mr Craig Layton Executive Director of FACS since 21 January 2019. Mr Layton’s first affidavit dated 6 August 2019 outlined the system of out-of-home care, in particular the role of ITTC. Mr Layton attested that there is demand for ITC services in NSW and that the Newcastle region has a “very high level of demand” for ITC services.

55. Mr Layton attested that there are children within the Hunter district (which includes the Newcastle location) that require the services offered at the Property but who have instead been placed in an “Alternative Care Arrangement” (ACA), an option of last resort. In an ACA, the children receive little to no therapeutic support. ACAs are emergency accommodation arrangements involving the use of short-term accommodation in facilities such as hotel rooms and apartments with authorised agency staff engaged to care for children. The NSW Government has a policy of reducing, and ultimately eliminating, the use of ACAs.

56. A diagram of ITC placement types and letters from the Crown Solicitor’s Office dated 5 July 2019 advising the Applicant’s lawyers that, on a without admission basis, the Minister was in the process of commissioning a review of environmental factors (REF) for the Property, were annexed to Mr Layton’s first affidavit (Ex 1A).

57. Mr Layton’s second affidavit dated 5 March 2021 outlined his intention to provide further updated evidence in relation to the children or young people in care at the Property.

58. Mr Layton’s third affidavit dated 12 April 2021 attested that there are currently approximately 1,800 children and young people in the Minister’s statutory care in the Department’s Hunter district which includes the local government areas of Newcastle, Cessnock, Dungog, Lack Macquarie, Maitland, Port Stephens and Singleton. This accounts for approximately 14 percent of statutory out-of-home care placements. There are currently around 670 children and young people in NSW who are eligible for an ITC placement, around 140 of these are in the Hunter district, and around 40 in the adjoining New England district. There is currently a shortage of available properties to place children in the Minister’s statutory care. At the date of Mr Layton’s third affidavit, there were approximately 38 children awaiting placement state wide, 11 of whom are seeking a placement in the Newcastle area. A suitable placement has not yet been identified for these 38 children.

59. There are currently four young people living at the Property. These young people are subject to court orders placing them in the care of the Minister and were placed at the Property on February and March 2021. If the Property was unable to house these young people, they would need to be relocated. Given the shortages of available properties, it may be difficult to find an appropriate placement. This may result in relocation to a placement that would be disruptive or otherwise not in the best interests of the young people, such as a placement in a different part of NSW, or an emergency placement in temporary accommodation such as a short term rental of an apartment, unit or hotel room.

129. The principles to consider in characterising development are identified in the Applicant’s submissions in relation to Chamwell inter alia (see in [74]-[78] above). These principles were stated by me in Dooralong at [99]:

The parties were not in disagreement with the principles relevant to characterisation extracted in Chamwell at [27]-[50] and adopted in Abret at [49]-[54]. Characterisation must be done in a common sense and practical way: Chamwell at [45]. The principles were correctly summarised in the Salvation Army's submissions. Firstly, a use must be for a purpose, being the end to which the use of the land can be seen to be put: O'Keefe at 535. The use of land involves no more than the “physical acts by which the land is made to serve some purpose”: Council of the City of Newcastle v Royal Newcastle Hospital [1957] HCA 15; (1957) 96 CLR 493 at 508. Secondly, the nature of the use needs to be distinguished from the purpose of the use: O'Keefe at 534-535 and Warringah Shire Council v Raffles [1979] 2 NSWLR 299. Thirdly, in determining whether land was used for a particular purpose, an inquiry into how that purpose could be achieved is necessary: Council of the City of Newcastle at 499-500. Fourthly, the characterisation of the purpose should be done “at a level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on”, not “in terms of the detailed activities or processes” but not so general as to “embrace activities, transactions or processes which differ in kind from the use which the activities etc, as a class have made of the land” : Royal Agricultural Society of New South Wales at 310. The construction is for town planning purposes: Boyts Radio and Electrical at 59 per Kirby P and Grace at [88]-[90].

131. As the Respondents submitted, I must determine positively what is the purpose of the activity on the land in applying these principles. The Applicant’s approach of arguing that the principal purpose is not a “transitional group home” and may be for other uses which are prohibited in the E4 zone is not an adequate or principled approach to the characterisation of the use of land.

132. The Applicant asserted, relying on Penrith Waste Services, that it had discharged its onus of establishing that development consent had not been obtained, so that the onus of proof shifted to the Respondents to prove that the use of the Property did not require development consent. It is an agreed fact that no development consent has been obtained by Marist for the activity at the property. Penrith Waste Services has no application to what is otherwise an orthodox civil enforcement proceeding in which the Applicant bears the onus of proof on the balance of probabilities of establishing its case. The facts of Penrith Waste Services which informed the consideration of onus at 105 were concerned with the use of land for the purposes of extractive industry and solid waste disposal. Penrith City Council had brought enforcement proceedings seeking compliance with various development consents, and Penrith Waste Services Pty Ltd sought declarations that it could lawfully use the land under existing use rights.

133. The definition in cl 42(1)(b) of the ARH SEPP that must be considered is “temporary accommodation comprising refuges for ... young people”. A similar definition exists in the Newcastle LEP. The principal argument of the Applicant for why the activity is not a transitional group home as defined in the ARH SEPP and the Newcastle LEP is that its primary purpose is not the provision of temporary accommodation but the provision of services such as assessment of needs and provision of treatment.

134. Considering the concept of “refuge”, there is no definition in the ARH SEPP. Its ordinary meaning in the Macquarie Dictionary (online at 13 May 2021) is “a place of shelter, protection, or safety”. Whether a refuge is being provided is informed by the circumstances of the young people who stay at the Property. That occurs by virtue of the Care Act. The structure of the Care Act was amply identified in Marist’s submissions in [95] above concerning the making of care orders under s 79 of the Care Act by the Children’s Court placing vulnerable young people in the care of the Minister. The Minister may delegate his or her functions including to designated agencies inter alia. Marist is a designated agency under the Care Act. Under former s 139 of the Care Act (now s 72 of the CG Act) a “designated agency” is an organisation that has been accredited under the regulations to provide out-of-home care. An organisation may apply to be a designated agency under cl 45(1) of the Care Regulation. Marist’s certificate of accreditation as a “designated agency” under cl 65 of the Care Regulation was exhibited to Mr Monaghan’s affidavit in [31] above. Section 137 of the Care Act defines “authorised carer” as the principal officer of a designated agency. Mr Monaghan is Marist’s principal officer and an “authorised carer” under s 137 of the Care Act.

135. Schedule 1 of the FACS Agreement, referred to extensively in submissions, is extracted in [62] above. The FACS Agreement was entered into in order to support the Permanency Support Program, as identified under the heading “Background” at C. The Applicant referred to provisions from the Permanency Support Program policy document – Appendix 5 (Ex C) identified in [63] above. This is a policy document which largely outlines what is otherwise contained in the legally binding FACS Agreement. I therefore had regard to the FACS Agreement. ITTC operations are dealt with in clause 7.6 of Schedule 1 of the FACS Agreement. Marist provides ITC treatment defined above in clause 2 of Schedule 1 of the FACS Agreement as services supporting high needs children and young people. Separately Marist also provides ITTC facilities such as at the Property. ITTC defined above in clause 2 of Schedule 1 of the FACS Agreement is a time limited interim placement. As Marist submitted, up to 13 weeks of temporary refuge accommodation is provided at the Property with paid supervision. The presence of staff at the Property is necessary in providing a safe environment for children and young people removed from situations of risk and trauma.

136. Although Mr Monaghan’s affidavit was read on the basis of his understanding and belief of how the Care Act operates, no alternative arguments were made or evidence provided suggesting that he was wrong in his understanding and I accept his evidence. He is clearly qualified to give that evidence given his role at Marist.

137. The accommodation provided at the Property is intended to have a home-like feeling in order to provide therapeutic care in the broad sense of the definition of that term under clause 2 of Schedule 1 of the FACS Agreement. Mr Monaghan’s affidavit identifies that it is important that ITTC services are delivered in residential settings in order to provide the children and young people with an environment in which they feel valued and safe. Limited modification works were required such as fencing, filling in a dam and putting in an internal wall to create a second bathroom, in order to make the Property appropriate as an ITTC home (see the Briefing Document in [25] above and Mr Monaghan’s affidavit in [42] above). The children at the Property live there as a single household with four bedrooms, two lounges, a rumpus room, one kitchen and three bathrooms (see Mr Monaghan’s affidavit in [37] above). The photographs taken by Ms Lovett referenced in [29] above show that the rooms at the Property look like rooms in a home.

138. Considering the provision of temporary accommodation, Mr Monaghan’s affidavit identifies, and Marist submitted, that Marist provides accommodation for up to four vulnerable young people at the Property for up to 13 weeks as already stated above. This period of up to 13 weeks is also provided for in the FACS Agreement in the definition of ITTC in clause 2 of Schedule 1. This is clearly temporary accommodation as referred to in the definition in subparagraph (b) of cl 42(1) of the ARH SEPP.

139. Clause 7.6.6 of Schedule 1 of the FACS Agreement relates to children in foster care (defined in Schedule 1 and not ITC), children in ITC (not ITTC) and young people in families needing extra support. The obligations in clause 7.6.6 are not carried out at an ITTC facility, including the Property. Mr Monaghan’s oral evidence in [48] and [53] above confirms this.

140. The main argument advanced against the primary purpose being accommodation is that the principal purpose of the activity is assessment of needs and the provision of therapeutic treatment. That is not borne out by the evidence. While assessment can take place, as Marist submitted, there is no evidence that any ITC treatment takes place at the Property or is intended to. Mr Monaghan’s affidavit identifies the staffing arrangements at the Property in [38]-[39] and [46] above. The therapeutic specialists and MDS Team are based at offices away from the Property and the MDS Team had not visited the Property in the 12 months before 22 February 2021. These staffing arrangements do not undermine a finding that the primary purpose of the Property is of accommodation as a refuge.

141. For the reasons given by Marist outlined above in [102]-[105], the activity is not a “hospital”, “health services facility” or “office premises” as defined in the Newcastle LEP. The Applicant has not proved that the primary purpose of the use of land is other than as a transitional group home, the purpose of which is to provide accommodation to vulnerable young people as defined in the ARH SEPP.

142. I consider the activity being conducted on the Property is appropriately characterised applying the principles in Chamwell inter alia as a transitional group home as defined in cl 42(1)(b) of the ARH SEPP. The Property is operating as a refuge providing temporary accommodation for vulnerable young people. It is permitted in the E4 zone by operation of the ARH SEPP. As Marist submitted, in any event cl 8 of the ARH SEPP provides that the ARH SEPP prevails over any provision in the Newcastle LEP were the activity to also fit within a use identified in that LEP (which I have found it does not). Nor is it necessary to refer to clause 2.3.3(b) of the Newcastle LEP relied on by Marist in [94] above because the use of the Property has not been shown to come within another defined use for the purpose of the Newcastle LEP.

143. The Applicant is unsuccessful in this part of its case.

“On behalf of” Minister

Issues (c) and (d)

144. While the Respondents’ submissions addressed “by” as well as “on behalf of”, the Applicant’s case alleges only “on behalf of”. That is what I will address. That the Minister and Marist both consider Marist is acting “on behalf of a public authority” is indeed compelling to suggest that that is occurring.

145. Toohey identifies that the statutory context is relevant to determining the meaning of “on behalf of”, the High Court there adopting a wide meaning in the context of land rights legislation. A similar approach was taken in Portus, in quite different circumstances concerning union membership. Citizens Airport CA identifies that the level of control must be considered. BACH identified that “on behalf of” has a wider application than agency at [27] and emphasised supervision over the activity of the beneficiary as a matter to consider.

146. For completeness I note that the Applicant’s submissions raised the issue of whether Marist was acting as an agent of FACS, as set out in [91] above, arguing that it was not. The Minister also did not accept that Marist was acting as the agent of FACS. Given that “on behalf of” has a wider meaning than acting as an agent, no finding in this regard is needed, as Marist submitted.

147. The facts of Citizens Airport CA set out in the Applicant’s submissions in [81] above can clearly be distinguished from the facts here. The structure of the Care Act and the FACS Agreement placed obligations on Marist, outlined in particular in Marist’s submissions summarised in [111]-[114] above, Mr Monaghan’s affidavit summarised in [31]-[39] above and the Minister’s submissions summarised in [126] above. The operation of the statutory scheme amply demonstrates that Marist is acting on behalf of FACS in providing an ITTC facility at the Property. FACS maintains a high degree of control over the activity identified in Marist’s submissions in [115]-[117] above, including in choosing the locations of ITTCs at the time the Property was purchased, requiring a minimum number of staff to be present 24 hours per day, requiring provision of a house manager, caseworker, therapeutic specialist and MDS Team, providing for termination of the FACS Agreement where a default event occurs and prohibiting Marist from assigning its rights.

148. I do not accept the Applicant’s submission that because the FACS Agreement is not directed at a site-specific level it is not directive in how Marist conducts activities at the Property. The FACS Agreement is highly prescriptive. As identified in Marist’s submissions, FACS exercises a high level of control. The evidence demonstrates that Marist is acting on behalf of FACS in undertaking running an ITTC facility at the Property and is not operating on its own behalf.

149. The Applicant sought to demonstrate that Marist is an independent organisation that spends substantial sums of money to further its own purpose of looking after vulnerable young people including at the Property, which it owns. Mr Monaghan was cross-examined about Marist’s income in the 2018 and 2020 financial years to the effect that about half of its substantial income of around $40 million comes from non-government sources. That that is the case is neutral in my view. Marist undertakes a lot of child protection work in NSW under the auspices of the Care Act which provides the legal framework for these operations. How that work is funded and that Marist owns the Property does not alter the nature of the legal obligations it is undertaking.

150. Mr Monaghan’s affidavit identifies in [40] above that FACS was aware of Marist’s selection of the Property before its purchase. An earlier FACS Agreement was in force in December 2018 when the Property was purchased. FACS was consulted about the purchase at the relevant time. A letter from FACS to Marist dated 4 February 2019 advising that FACS will no longer approve ITTC properties is noted, see Applicant’s submissions in [89] above. This does not undermine my finding in relation to “on behalf of” given the many other indicators considered.

Conclusion

151. Marist is undertaking the operation of a transitional group home on behalf of a public authority. Development consent under the EPA Act is not required for that activity in light of cl 43(1)(a) of the ARH SEPP.

152. Issue (d) does not arise and evidence relevant to discretion in the Applicant’s, Mr Monaghan’s and Mr Layton’s affidavits need not be considered. I note that an REF was prepared for the purposes of Pt 5 of the EPA Act in August 2019 which concluded that the activity did not have a significant impact on the environment. Building work undertaken was minimal. To the extent that day-to-day-operations have caused concern to neighbours reflected in the lay affidavits prepared in 2019, Mr Monaghan’s affidavit identifies Marist’s response to these.

153. As the Applicant has been unsuccessful, the second further amended summons will be dismissed. Costs in Class 4 proceedings generally follow the event, meaning the Applicant would be liable for some costs. One issue that may arise is whether the Applicant should be liable for both Respondents’ costs if these are sought. I have not heard submissions on costs. The opportunity for these will be provided.

Orders

154. The Court orders:

1. The second further amended summons dated 17 December 2019 is dismissed.

2. Costs are reserved.

Decision last updated: 25 May 2021