Blacktown City Council v Haddad
[2012] NSWLEC 224
•28 September 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Blacktown City Council v Haddad [2012] NSWLEC 224 Hearing dates: 13 June 2012 Decision date: 28 September 2012 Jurisdiction: Class 4 Before: Pepper J Decision: 1. the Court declares that the Complying Development Certificate C11-039 dated 12 October 2011 ("the CDC") for the construction of a two storey building at 31 Cornelia Road, Toongabbie ("the proposed development") issued by the first respondent is void and of no effect;
2. the Court orders that the second and third respondents be restrained from carrying out any works on the proposed development pursuant to the CDC; and
3. the Court orders that the first, second and third respondents pay the applicant's costs of the proceedings.
Catchwords: DEVELOPMENT CONSENT - whether a complying development certificate validly issued - whether proposed development properly characterised as a permanent group home under relevant planning instrument - whether accommodation proposed constituted a dwelling -if so, whether it was to be occupied as a single household - whether properly characterised the development to be used to provide permanent accommodation for socially disadvantaged people - whether concept of socially disadvantaged includes financially disadvantaged - complying development certificate invalid. Legislation Cited: Environmental Planning and Assessment Act 1979 ss 4, 76A(5), 85(3)
Interpretation Act 1987 s 35
State Environmental Planning Policy (Affordable Rental Housing) 2009 cls 3, 4(2), 6(1)(a), 42, 43, 45, 47(1), Pt 2 Div 7, Sch 2
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008Cases Cited: Ashfield Municipal Council v Australian College of Physical Education Ltd (1992) 76 LGRA 151
Bardsley-Smith v Penrith City Council [2012] NSWLEC 79
Burwood Municipal Council v Aboriginal Hostels Ltd (1979) 39 LGRA 150
Dooralong Residents Action Group Pty Limited v Wyong Shire Council [2011] NSWLEC 251; (2011) 186 LGERA 274
GrainCorp Operations Limited v Liverpool Plains Shire Council [2012] NSWLEC 143
House of Peace v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498
North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd (1990) 21 NSWLR 532
South Sydney Municipal Council v James (1979) 35 LGRA 432
Warehouse Group (Australia) Pty Ltd v Woolworths Ltd [2005] NSWCA 269; (2005) 141 LGERA 376
Warlam Pty Ltd v Marrickville Council [2009] NSWLEC 23; (2009) 165 LGERA 184
Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707
Wyong Shire Council v Ardi [2000] NSWLEC 253; (2000) 112 LGERA 85Texts Cited: Macquarie Dictionary, on-line edition
Oxford English Dictionary, on-line editionCategory: Principal judgment Parties: Blacktown City Council (Applicant)
Camile Haddad (First Respondent)
Leonard Brown (Second Respondent)
Deborah Prior (Third Respondent)Representation: Mr I Hemmings (Applicant)
Mr A Galasso SC (Respondents)
Houston Dearn O'Connor (Applicant)
Ritchie & Castellan Solicitors (Respondents)
File Number(s): 41191 of 2011
Judgment
A Complying Development Certificate is Issued for the Construction of a Two Storey Group Home at Toongabbie
By summons filed 16 December 2011, the applicant, Blacktown City Council ("the council"), seeks a declaration that a complying development certificate C11-039 dated 12 October 2011 ("the CDC") for the construction of a two storey building at 31 Cornelia Road, Toongabbie ("the premises"), issued by the respondent, Mr Camile Haddad, is void and of no effect. The council also seeks an order that the second and third respondents, Mr Leonard Brown and Ms Deborah Prior, the registered proprietors of the premises, be restrained from carrying out any development works pursuant to the CDC.
The CDC was for the "construction of a two storey permanent group home comprising of 29 bedrooms and associated facilities".
The CDC was issued pursuant to the State Environmental Planning Policy (Affordable Rental Housing) 2009 ("the SEPP").
The council challenges the issuing of the CDC essentially on the ground that the proposed development the subject of the CDC cannot properly be characterised as a "permanent group home".
No construction of the premises the subject of the CDC has been undertaken.
For the reasons that follow, the council's contentions must be upheld and the relief claimed in the summons granted. This is because the proposed development fails to satisfy the criteria of a "permanent group home" as required pursuant to the SEPP.
The Legislative and Planning Framework
The aims of the SEPP are set out at cl 3 as follows:
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.
Part 2 of the SEPP concerns "New affordable rental housing". Division 7 of that Part is concerned with "group homes". Clause 42 of Div 7 defines "group home" to mean "a permanent group home or a transitional group home". These proceedings are concerned with "a permanent group home" only.
Development for the purpose of a permanent group home on land in a prescribed zone is permissible without consent if the development "does not result in more than 10 bedrooms being within one or more group homes" (cl 43(1)(a) of the SEPP), or with consent in any other case (cl 43(1)(b)). It was not contested that the development is to be carried out on land in a prescribed zone.
By reason of the operation of cl 45 of the SEPP, where the circumstances prescribed by that clause are met, development for the purposes of a group home is complying development. As a consequence, if the development is properly characterised as a "permanent group home" and if it complies with the requirements prescribed by cl 45 of the SEPP, a CDC may be granted.
Pursuant to s 4 of the Environmental Planning and Assessment Act 1979 ("the EPAA"), "complying development" is development for which provision is made under s 76A(5) of the Act. The subsection contemplates the provision by an environmental planning instrument of development, or a class of development, that can be addressed by specified predetermined development standards.
Section 85(3) of the EPAA states that a CDC enabling the erection of a building is sufficient to authorise the use of that building "for the purpose for which it was erected if that purpose is specified in the application for the complying development certificate".
The composite term "permanent group home" in the definition of "group home" in cl 42 of the SEPP is not defined in the SEPP. Rather, pursuant to cl 4(2) of the SEPP, expressions used in the SEPP have the same meaning as they do in the "Standard Instrument", being the standard instrument set out at the end of the Standard Instrument (Local Environmental Plans) Order 2006 ("the Standard Instrument").
In the Standard Instrument, the term "permanent group home" is defined to mean the following:
group home (permanent) or permanent 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 permanent household accommodation for people with a disability or people who are socially disadvantaged,
but does not include development to which State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 applies.
The term "dwelling" is defined in the Standard Instrument as "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."
By contrast, the phrase "transitional group home" is defined as follows:
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.
Clause 45 of the SEPP provides that development for the purposes of a group home is complying development if the development satisfies the requirements for complying development specified in certain clauses of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, albeit with modifications. The development standards referred to in cl 45(1A)(2) and enumerated in Sch 2 must also be satisfied. At the hearing no issue was taken in relation to the compliance of the proposed development with these development standards.
Applicable Legal Principles
The essential issue for determination is whether, as a matter of proper characterisation, the proposed development at the premises may properly be regarded as a "group home" for the purpose of cl 42 of the SEPP. Since resolving this issue will also resolve the issue of whether Mr Haddad had the power to issue the CDC, it is a jurisdictional fact which the Court must determine for itself (Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707 at [86]-[88], [140]-[142], [207] and [219], Warehouse Group (Australia) Pty Ltd v Woolworths Ltd [2005] NSWCA 269; (2005) 141 LGERA 376 at [130]-[131], Dooralong Residents Action Group Pty Limited v Wyong Shire Council [2011] NSWLEC 251; (2011) 186 LGERA 274 at [95]-[97] and GrainCorp Operations Limited v Liverpool Plains Shire Council [2012] NSWLEC 143 at [3]).
The general principles of characterisation have been frequently stated, considered and restated by this Court and the Court of Appeal. In Dooralong, Pain J summarised them as follows, which I respectfully endorse (at [34]-[35] and [99]):
34 The principles relevant to characterisation were identified in Chamwell Pty Limited v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400 at 406 and Shire of Perth v O'Keefe (1964) 110 CLR 529 at 535 per Kitto J (Owen J agreeing), approved by the High Court in Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1. The need to identify the purpose at an appropriate level of generality was identified in Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 at 310 per McHugh J (Hope and Samuels JJA agreeing). Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 at 160 per Glass JA (Samuels and Hutley JJA agreeing) held that where there are two uses the dominant purpose can be regarded as the whole.
35 Regardless of how a proponent may describe the proposed development, the true question is how one characterises what is proposed. The Council's submission that it is sufficient to look at the consent to construe what was approved is incorrect. In response to the Council's submissions at par 55 below, if the proposed use cannot properly be described in the way the consent describes it then the consent is invalid. Courts go behind the description in the consent in order to assess what is the true characterisation of the purpose: see Bentham v Kiama Municipal Council (1986) 59 LGRA 94; Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707 and Sansom v Port Stephens Council [2006] NSWLEC 475; (2006) 147 LGERA 203 at [15]. If the proposed use meets more than one description and one of those is a prohibited purpose within the zone, then the consent is invalid and it matters not what the use may also be characterised as: Abret v Wingecarribee Shire Council [2011] NSWCA 107; (2011) 180 LGERA 343. However, if severable, the other part of the use may be permissible with consent as an innominate use.
...
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 commonsense 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].
More recently, Sheahan J usefully collected and examined the relevant case law in Bardsley-Smith v Penrith City Council [2012] NSWLEC 79 (at [229]-[241]). I gratefully adopt, without repeating, his Honour's analysis.
Issues for Determination
Having regard to the definition of "permanent group home" in the Standard Instrument, it was agreed that in order for the respondents to succeed, the Court was required to be satisfied of the following four elements:
(a) first, that the proposed development is for "a dwelling";
(b) second, that the dwelling is to be occupied "as a single household";
(c) third, that the dwelling is to provide "permanent household accommodation"; and
(d) fourth, that the dwelling is to provide permanent household accommodation for people "with a disability or people who are socially disadvantaged".
All four criteria must be present to characterise the proposed development as a "group home".
A Description of the Proposed Development
In general terms, the proposed development comprises a two storey building, with setbacks and articulation and fenestration in accordance with the development standards referred to in cl 45 of the SEPP.
Internally, the building is configured to comprise 29 bedrooms. Each bedroom has an ensuite bathroom, a wardrobe, a bench and sink area, and its own washing/drying laundry facilities. Neither a cooktop nor a stove is provided in each bedroom, however, there is provision for tea making (marked on the plans as "TM"). Each bedroom has its own television and access to Foxtel. Twenty two of the 29 bedrooms have either access to balconies with associated privacy screens, or access to a private ground floor outdoor area.
The council suggests an occupancy rate of 1.17 persons per room, resulting in a potential maximum occupancy of 34 persons.
On the ground floor there is a communal laundry and a communal kitchen with the capacity to seat 12 persons. Two ovens and two cooktops are provided to cook food.
There are three small areas marked "lobby" which provide for communal space, but in these spaces no chairs or lounge suites provided. On level one there is a communal terrace.
Additional features of the proposed development include the following:
(a) each room is to be provided with a separate phone line;
(b) the doors to each of the rooms are to include a peep hole;
(c) a security audio/visual intercom will be connected to every room;
(d) video surveillance of all public spaces of the building, and its exterior, will be available to be viewed within each room;
(e) the Managing Agent, who will not reside at the premises, will organise the cleaning and maintenance of the common areas, and undertake periodic inspections of the bedrooms to ensure that they are being maintained;
(f) the common areas (foyers, parking, open terrace and landscaping) are to be cleaned and maintained by contract cleaners, rather than the persons residing at the development; and
(g) the contract cleaner, and not the residents, will remove and return the rubbish bins.
Is the Proposed Development a Permanent Group Home?
The council submitted that the proposed use of the building was not as a dwelling. It relied on the view expressed by Reynolds JA in South Sydney Municipal Council v James (1979) 35 LGRA 432 at 440, where his Honour said:
In my opinion a building is used as a dwellinghouse within the meaning of cl. 23 if its use is such that it can fairly be said as a matter of fact that it is occupied in much the same way as it might be occupied by a family group in the ordinary way of life and that it is not a use and occupation more appropriately described in other categories of residential buildings.
In James the term "dwelling-house" was relevantly defined to mean "a building designed for use as a dwelling for a single family" (at 442).
The council argued that the proposed development would not be occupied in much the same way as it might be occupied by a family group in the ordinary way of life, and therefore, it did not constitute a "dwelling" for the purposes of a "permanent group home".
In James, Reynolds JA also stated that (at 439):
...it is my view that the appropriate question which the responsible authority should ask itself in considering a matter related to the alteration or erection of a building claimed to be a dwellinghouse within the meaning of the table to cl. 23 is whether as a matter of fact the plans and other available information show that the layout of the proposed building or the building as altered is such that it is appropriate for a family unit to live in it in the accepted way. On this aspect of the case an inquiry as to whether the person or persons who will or may occupy the building could properly be described as a single family is irrelevant.
James was described as "a useful guide" and applied in Ashfield Municipal Council v Australian College of Physical Education Ltd (1992) 76 LGRA 151 by Pearlman J (at 153). In that case the relevant planning instrument defined "dwelling" in identical terms to the subject SEPP. In dispute was whether or not residential accommodation offered by an educational institution for students constituted a boarding house rather than a dwelling house, the former of which was prohibited. Her Honour held that the accommodation constituted a boarding house because (at 155):
When one considers the evidence that the premises are owned by the respondent...whose students apply to it for an agreement to occupy a numbered room, for rent, with services provided, and with a sharing of common facilities in each house, it seems inescapable that what is more appropriately described here is letting the houses as lodgings and not using them in the same way as a family group in the ordinary way of life.
The council therefore submitted that the proposed development was not a "dwelling" because it could not be fairly said, looking at the development as a whole, that, as a matter of fact, the building would be occupied in the same way that a family group in the ordinary way of life would occupy it.
The respondents readily concede that, when regard is had to the traditional approach concerning the notion of a dwelling in a planning context, that is, as aligned with the concept of a domicile - a permanent residence for a single family unit - the proposed development would be unlikely to constitute a dwelling (Burwood Municipal Council v Aboriginal Hostels Ltd (1979) 39 LGRA 150 at 151-153 but cf Wyong Shire Council v Ardi Pty Ltd [2000] NSWLEC 253; (2000) 112 LGERA 85 at [15] and [17]). In other words, if the proposed development is conceived as having multiple bedrooms in which unrelated persons reside in a group situation, the building will not ordinarily function as a dwelling.
But notwithstanding this concession, the respondents argued that, for the purposes of the SEPP, the notion of a "dwelling", when used with the concept of "permanent group home", is very different and must be distinguished from the use of that concept in James and Ashfield. This is because, first, the definition of "dwelling" in the Standard Instrument encompasses a single room capable of being occupied or used as a separate domicile, irrespective of its actual purpose.
Second, the definition of "permanent group home" specifically departs from the notion of a single family unit insofar as it contemplates that persons occupying the dwelling as a single household need not be related or come from the same single family unit.
Third, the notion of occupation by persons "as a single household", tied as it is to paragraph (b) of the definition of "permanent group home", means only a single household that provides accommodation for people who are to be characterised as having disabilities or who are socially disadvantaged. These persons can not only be unrelated to each other, they may be entirely independent or dependent "with...paid supervision or care" and/or for "board and lodging". Again, the respondents submit, this divorces the notion of a "dwelling" in the SEPP from that of a more traditional concept of a "separate domicile" or "a single household".
Fourth, the SEPP contains no constraint on the number of bedrooms permitted within "a single household". On the contrary, in the context of a group home the SEPP contemplates a significant number of bedrooms. For example, cl 43(1) permits a group home to be constructed and operate without consent if the development does not result in more than 10 bedrooms if the development is carried out by a public authority.
In summary, the respondents argue that notion of a "dwelling" being aligned to a family group is irrelevant to a SEPP that contemplates occupation by a non-family group.
The Development Does Not Constitute a "Dwelling"
Notwithstanding the force of the respondents' submissions, in my opinion, the proposed development does not constitute a "dwelling" as that term is defined in the Standard Instrument and as it has been considered in both Ashfield and James.
I have reached this conclusion while nevertheless accepting the respondents' submission that the concept of a "dwelling" is mutable, and presently accommodates a changing conception of what comprises "a family group in the ordinary way of life".
I agree that the definition of a "dwelling" in the Standard Instrument expressly recognises that the members comprising a 'family group' need not be related to each other. A building accommodating, for example, friends living together in a share house arrangement, will readily constitute a "dwelling". It may even encompass persons living together who, while initially strangers, ultimately live together as a household unit under the rubric of flat-mates or house-mates. Modern 'families' reflect modern times and modern mores.
I also agree that bedrooms in modern dwellings often have ensuite bathrooms or toilets, their own televisions, telephones and other forms of entertainment and communication. This is no more than, as Biscoe J pithily described in Warlam Pty Ltd v Marrickville Council [2009] NSWLEC 23; (2009) 165 LGERA 184 (at [30]) "the evolution of the bedroom". These features do not mean, by themselves, that the proposed development does not constitute a "dwelling" as defined.
Similarly, I do not consider that, of itself, the number of proposed bedrooms in the development is necessarily fatal to its characterisation as a "dwelling" contained in the definition of "a permanent group home" for the purposes of the SEPP. As the respondents submitted, the SEPP is silent on the number of permissible bedrooms in this regard and the definition of "dwelling" contemplates the occupation of either a single or multiple rooms (see also cl 43(1) of the SEPP).
Having said this, and as elaborated below, the large number of proposed bedrooms - 29 - particularly when viewed in the context of other features of the development, is suggestive of a living arrangement that is inconsistent with any modern 'family' life in the ordinary way, that is to say, a dwelling.
This inconsistency is amplified when regard is had to the notion of "domicile", implying, as it does, a degree of permanence (North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd (1990) 21 NSWLR 532 at 538A-B, GrainCorp Operations at [20] and Dooralong at [110], albeit in the context of residential accommodation). The tenancy arrangement for the proposed development is for a minimum of three months. Given the anticipated nature of the occupation, a potential turnover of tenants of three months is antithetical, in my view, with the type of permanence reasonably characteristic of ordinary family life, even in the 21st century.
The Proposed Development is Not Occupied by Persons "as a Single Household"
Even if I am wrong in my conclusion that the proposed development does not constitute a "dwelling", in my opinion, the dwelling will fail to be "occupied by persons as a single household".
The term "household" is not defined in the SEPP or the Standard Instrument. Ever mindful of the caution to be exercised in the invocation of dictionary definitions as an aid to statutory interpretation (House of Peace v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 at [25]-[29] and GrainCorp Operations at [26]), the term "household" is defined to mean "the inhabitants of a house considered collectively; a group of people (esp. a family) living together as a unit" (Oxford English Dictionary, on-line edition) and "the people of a house collectively" (Macquarie Dictionary, on-line edition).
There is therefore, as the council submits, woven into the fabric of any "household", the necessary element of cohesion between the occupants of the dwelling. Or put another way, the necessity to live together as a unit. This is because a "household" is, in my opinion, more than a random collection of individuals conveniently located under one roof, living wholly separate lives with limited or no social interaction. This is not to say that living together as a unit cannot nevertheless occur between unrelated occupants of a home. Such arrangements are commonplace in share-households. And while the occupants will not engage with each other in the same way that a family would, they will nevertheless live as a unit, dividing household chores and bills, and typically engaging in a degree of social activity.
I agree with the council that the proposed development is highly unlikely to engender the dwelling to be occupied as "a single household". Of course, just as characterising what constitutes a "dwelling" is a matter of degree, so too is the identification of the criteria constituting "a single household". The present case is finely balanced, but when regard is had to the various features of the proposed development, the better characterisation is that the occupants of only each room, and not the dwelling, will live as a separate household.
As stated above, I am not troubled by the fact that each room has its own telephone, television or ensuite. These features are commonplace in many bedrooms today. I am also not troubled by the fact that the common areas are to be cleaned and maintained by contractors and not the occupants of the building. Again, many households engage the services of a cleaner, a gardener and other contract workers to assist with routine domestic duties. The definition of "permanent group home" in the Standard Instrument expressly contemplates the provision of such services by the inclusion of the words "with or without paid supervision or care" and "payment for board and lodging".
But I am concerned by four aspects of the development that have led me to conclude that the tenants will not occupy the dwelling "as a single household":
(a) first, is the absence of any area for the occupants to recreate or congregate together in a communal living room. Although the Town Planning Report annexed to the CDC states that the tenants of individual bedrooms will share "the outdoor recreation, lounge, dining, laundry, kitchen and parking facilities" (emphasis added), nowhere on the plans is a lounge area visible and the "lobby" areas are too small for indoor socialisation to occur. The absence of such an indoor space is exacerbated by the fact that 22 of the 29 rooms have their own separate and exclusive outdoor space by way of a screened balcony or small terrace. Furthermore, the large rooms (those measuring 19.89m2 or more) clearly envisage a lounge suite in the individual rooms (as is depicted on the plans). While it is not unusual for bedrooms to have access to confined outdoor areas (for example, terrace balconies), this feature, together with the absence of any genuine communal indoor area and the capacity of some rooms to have their own lounge suites, will undoubtedly have the effect of promoting the isolation of the individual occupants within the development and is inimical to the socialisation of the occupants with each other and, as a consequence, the tenants living together as a collective unit. The provision of an indoor area in which to socialise is, in my view, critical to the occupants living "as a single household". And for the reasons discussed below, I do not consider the kitchen and dining area to be adequate in this regard. Moreover, it is unlikely, in my view, that the communal outdoor area will be used for this purpose given the high proportion of individual private outdoor space;
(b) second, and contrary to the description given in the Town Planning Report, each bedroom will have its own laundry by the provision of a "washing machine dryer combo". Although there is also a communal laundry, again, in my opinion, this is not suggestive of the occupants of the dwelling living as a single household. It can be reasonably inferred that most tenants will use their individual, and not the communal, laundry;
(c) third, although the Town Planning Report states that "individual bedrooms cannot be used as separate dwellings as they do not have a kitchen", I am not sufficiently convinced that this will be the case. The plans clearly indicate that, unlike the communal kitchen, no built in cooking facilities exist in the individual rooms, only "tea making" facilities are provided. While tea making facilities fall well short of a kitchen (Warlam Pty Ltd v Marrickville Council [2009] NSWLEC 23; (2009) 165 LGERA 184 at [37]-[41]), the provision of a sink and drainage area plainly contemplates that some food preparation will occur in the rooms. Although what is encompassed by "tea making" is not spelt out in the plans, at the very least it must include an electrical socket, which can therefore accommodate a variety of electrical cooking and food preparation devices, including a microwave and/or a bar fridge. Accordingly, the fact that an oven and cooktop is not provided in individual rooms will not, in my view, prevent the tea making area from being used as a kitchen. The size of the communal kitchen is also problematic insofar as the plans depict only two ovens and cooktops and seating for a maximum of 12 persons at any one time. Given that the respondents estimate a maximum of 34 occupants, while not every occupant will wish to use the kitchen at the same time (or indeed at all on any given day), the small size of the kitchen is not, in my opinion, conducive to the occupants functioning "as a single household" by cooking or sharing meals together. Thus, while I am willing to accept that the intention of the development is that regular meal preparation is not to be undertaken in individual rooms, this is unlikely to be achieved. As a consequence, another essential criterion of living "as a single household" is absent; and
(d) fourth, in my view "a single household" has, not dissimilar to the concept of a domicile, a degree of permanence about it. A household cannot operate cohesively as a unit if its members are transient and the time spent in the home is fleeting. As alluded to above, and as discussed further below, a minimum tenancy of three months is not indicative of persons occupying the dwelling "as a single household". It is more akin to an apartment or to a boarding house, the latter of which may, under the SEPP, be occupied by a number of separate households (see cl 47(1)).
Therefore, even if the proposed development can be characterised as a "dwelling", its tenants will not, when taken as a whole, occupy it "as a single household" because, by reason of the features above, they will not live as a cohesive unit, but will instead live as discreet and individual households.
The Accommodation is not "Permanent"
The next requirement for the purposes of a permanent group home is that the dwelling must be "used to provide permanent household accommodation" for the classes of persons identified in the definition of that composite term. The term "permanent" is not defined in either the Standard Instrument or the SEPP.
In Dooralong there was a challenge to the validity of a consent on the ground that, properly characterised, the proposed use of the site was not for the lawful purpose of a "hospital", as described in the development application, but for a prohibited purpose of "housing for...people with a disability" or a "boarding house". In determining the issue of whether the site was to be occupied for the former use, Pain J opined as follows (at [111], quoted in GrainCorp Operations at [18]):
111. The definition of "housing for people with a disability" includes residential accommodation which is or is intended to be used permanently as housing for people with a disability. While, this definition does not use the words "dwelling" or "dwelling house" to connote that this is intended to mean domicile, the ordinary meaning of the words "residential accommodation" and "permanently" was intended to convey residential buildings which will be used with a degree of permanence by the occupants. This is supported by the fact that the housing is for older persons or disabled persons. Such an interpretation is in accordance with the purpose of the definition. As submitted by the Salvation Army (par 72), the definitions in cl 7 of the LEP distinguish between certain defined uses on the basis of the identity of the user, supporting the construction that "permanently" applies to the disabled persons who will reside permanently. Upon this interpretation, the proposed use does not meet this part of the definition.
The evidence demonstrated that the site would not provide permanent housing, but would treat addicts in-house for a period of up to 10 months, and that less than 25% of the participants were likely to receive the disability support pension. As a consequence, her Honour held that the proposed use of the site would be neither for permanent residential accommodation nor for disabled persons (at [118]).
In addition to the observations already made above concerning the transient nature of a minimum three month lease for the residents of the development, applying, by analogy, the reasoning in Dooralong, it is clear that a three month residential tenancy agreement is insufficient to satisfy the description of "permanent household accommodation". In my opinion, a minimum six months residential tenancy is required.
This conclusion is reinforced when the concept of permanent group accommodation is contrasted with that of transitional group accommodation and when regard is had to the nature of the occupation required for the provision of these more temporary homes. While what constitutes "temporary" in the definition of a "transitional group home" is not elaborated upon in either the SEPP or the Standard Instrument, it is plain, given the class of person to whom a transitional group home is directed, that the accommodation is to be short-term in duration. That is to say, weeks or months, and not years. This is so notwithstanding that a "transitional group home" must nevertheless be a "dwelling". It follows that a "permanent group home" must contemplate a tenancy arrangement of months to years. On any common sense conception of the notion of "permanent", a minimum lease period of 12 weeks is inadequate in this regard and is more apt to the description of a "transitional group home".
I therefore do not find that, as offered, the accommodation is sufficiently "permanent" to satisfy the definition of "permanent group home".
"Socially Disadvantaged" Includes Financially Disadvantaged
Although the CDC did not expressly state to whom the accommodation was to be offered, it was not in dispute that the real candidates for occupation of the proposed development were those people who were "socially disadvantaged". Having said this, it is sufficient for the purposes of the definition of "permanent group home" that the accommodation is provided either to people with a disability or to those persons who are "socially disadvantaged". In this regard, it is noted that both the plans and the Town Planning Report make provision for physically disabled people to avail themselves of the proposed accommodation.
Unhelpfully, particularly given the importance of the term in determining whether or not a development meets the definition of a "permanent group home", what is meant by the concept of 'social disadvantage' is not defined.
An issue arose between the parties as to whether or not people who are financially disadvantaged are socially disadvantaged. Applying an ordinary common sense construction to the term "socially disadvantaged", I see no reason whatsoever for excluding from the broad notion of social disadvantage the narrower concept of financial disadvantage. To the extent that the council submitted otherwise, the submission is emphatically rejected. The grim reality of those who struggle to survive on low or even moderate incomes is that they are typically socially disadvantaged, lacking access to amenities that the more affluent in society too often take for granted, such as private transport, tertiary education, or safe and permanent accommodation. Indeed, the very SEPP governing this dispute is squarely directed to, as its title makes tolerably clear, the provision of affordable housing. Among those people seeking to access this class of accommodation will be those who are financially disadvantaged. There is nothing in the SEPP that distinguishes financial position from social disadvantage. Financial disadvantage, while not the only manifestation of social disadvantage, is regrettably an aspect of it.
Of course merely because the Town Planning Report accompanying the CDC application contains the following statement purporting to define the term "socially disadvantaged" in terms of financial disadvantage, does not mean, as a matter of characterisation, that the proposed development in fact offers housing to socially disadvantaged persons as required:
The term 'socially disadvantaged', although undefined, logically includes housing for very low income households, low income households or moderate income households.
Pursuant to SEPP 2009 a household is taken to be a very low income household, low income household or moderate income household if the household:
(a) has a gross income that is less than 120 per cent of the median household income for the time being for the Sydney Statistical Division (according to the Australian Bureau of Statistics) and pays no more than 20 per cent of that gross income in rent, or
(b) is eligible to occupy rental accommodation under the National Rental Affordability Scheme and pays no more rent than that which would be charged if the household were to occupy rental accommodation under that scheme.
This description was repeated in almost identical terms in the Plan of Management governing the operation of the home (also annexed to the CDC), together with an additional paragraph in these terms:
Tenants leasing a room on the basis of being a very low income, low income or moderate income household will be required to provide written certification that their income does not exceed the relevant income threshold calculated in accordance with above.
The Plan of Management stipulates that the Managing Agent will ensure that this written certification is provided.
The reference to the various income level households comes from the definition of "affordable housing" in cl 6(1) of the SEPP, which states as follows:
6 Affordable Housing
Note. The Act defines affordable housing as follows:
affordable housing means housing for very low income households, low income households or moderate income households, being such households as are prescribed by the regulations or as are provided for in an environmental planning instrument
(1) In this Policy, a household is taken to be a very low income household, low income household or moderate income household if the household:
(a) has a gross income that is less than 120 per cent of the median household income for the time being for the Sydney Statistical Division (according to the Australian Bureau of Statistics) and pays no more than 30 per cent of that gross income in rent, or
(b) is eligible to occupy rental accommodation under the National Rental Affordability Scheme and pays no more rent than that which would be charged if the household were to occupy rental accommodation under that scheme.
As cl 6 notes, the EPAA defines "affordable housing" in s 4 as:
"affordable housing" means housing for very low income households, low income households or moderate income households, being such households as are prescribed by the regulations or as are provided for in an environmental planning instrument.
Accordingly, the respondents submit that because the development will, as a matter of objective fact, provide household accommodation to people who are a very low income, low income or moderate income household, the development will provide accommodation to persons who are "socially disadvantaged", and therefore, will operate as a "permanent group home".
As part of the council's contention that people who are financially disadvantaged are not encompassed within the notion of "socially disadvantaged", the council argued, first, that the definition of "affordable housing" in s 4 of the EPAA and the deeming provision in cl 6 of the SEPP were irrelevant to the definition of a "permanent group home" because the term "affordable housing" is not employed in Pt 2 Div 7 of the SEPP, which regulates "Group Homes". The definition therefore cannot assist in the construction of Div 7 of the SEPP and it is an error to construe the meaning of "socially disadvantaged" by reference to the term "affordable housing".
Second, the council submitted that, even if social disadvantage can be determined by reference to household income levels, when regard is had to cl 6(1)(a) of the SEPP, because the group home must operate as "a single household", the combined income of all occupants of the 29 rooms cannot exceed the threshold of a very low income household as defined in cl 6(1)(a). Unchallenged evidence was tendered from the Australian Bureau of Statistics as at September 2010 to demonstrate that the "median gross weekly household income" for the Sydney Statistical District was $1,435. Thus the combined income of all occupants of the permanent group home cannot, using the formula in cl 6(1), exceed $1,722 per week and the maximum rent for the home cannot exceed $516.60 per week. Because this is not the manner in which the respondents intend the home to be occupied, the development cannot properly be characterised as a "permanent group home".
Dealing with the two arguments in order, first, although the council correctly observes that the term "affordable housing" is not referenced in Pt 2 Div 7 of the SEPP, the term nonetheless finds itself not only in the title of the SEPP, but also in cl 6, which is located in Pt 1 "Preliminary", governing the entire SEPP, and in the heading for Pt 2 "New affordable rental housing". The inclusion of the term in the title of Pt 2, in which Div 7 is contained, it telling insofar as it indicates, in strong terms, in my view, that each of the Divisions within Pt 2 are ultimately concerned with housing of that description. That is to say, affordable rental housing, and not just rental housing. The headings to Parts of an Act are taken to be part of that statute (see s 35 of the Interpretation Act 1987).
The characterisation of a "permanent group home" and the concept of "socially disadvantaged" expressly embedded within it, must therefore be viewed through the prism of affordable rental housing and, more particularly, through the definition given to "affordable housing" contained in s 4 of the EPAA and the deeming provision in cl 6(1) of the SEPP. This is because a "permanent group home" is, in essence, a subset of the affordable rental housing with which Pt 2 of the SEPP is concerned.
Properly examined in this context, a construction of "socially disadvantaged" that includes persons who are financially disadvantaged, and more specifically, persons on very low, low and moderate incomes, as described in cl 6(1) of the SEPP, is preferable to the narrow construction of that term posited by the council. Such an interpretation is also consistent with the objects of the SEPP, especially those made explicit by cl 3(a) and (g).
Given the stated mechanism in the Plan of Management of ensuring that only very low, low and moderate income households will be accepted as tenants in the proposed development, I find that the development will be used to provide accommodation to people who are "socially disadvantaged".
Turning to the council's second submission, I do not agree with the council's interpretation of the word "household" in sub-paragraph (b) of the definition of "permanent group home" as comprising the entire rental population of the development. First, not only would such an interpretation thwart the stated aims of the SEPP identified above, but it would severely curtail the provision of permanent group homes given the absurdly low total weekly income per dwelling threshold to qualify as a permanent group home. In short, very few persons would be able to even occupy a permanent group home if the maximum permissible weekly income for the entire home was $1,722 per week. Second, the interpretation ignores the express distinction between sub-paragraphs (a) and (b) in the definition of "permanent group home" by the inclusion of the word "single" before the word "household" in (a) and its omission from (b). It also ignores the very different form of wording in sub-paragraph (b), namely, "provide permanent household accommodation for people...who are socially disadvantaged" compared to "occupied by persons as a single household" in sub-paragraph (a). Contrary to the submission of the council, the wording in the two sub-paragraphs is not sufficiently similar such that the meaning attributed to the word "household" in (a) can be imported into (b). In addition to the omission of the word "single" preceding the word "household" in (b), on an ordinary common sense construction of sub-paragraph (b) it is plain that the term "household accommodation", when read with the word "people", means individual people and hence the individual households referable to those individual people. Thus for the purposes of what will constitute social disadvantage to satisfy sub-paragraph (b) of the definition of "permanent group home", provided that the total weekly income of the individual "household" to which each person belongs - in this case each room - does not exceed the stipulated threshold amount, a person will be financially disadvantaged and, in conformity with the reasoning above, "socially disadvantaged" for the purposes of the SEPP.
For these reasons I accept that, properly characterised, the use of the proposed development is as a "permanent group home" insofar as it will be used to provide household accommodation for people with a disability or who are socially disadvantaged.
Conclusion and Orders
However, for the reasons earlier expressed I do not consider that the development can in fact be characterised as a "permanent group home".
If follows that there was no power to issue the CDC.
Accordingly:
(1) the Court declares that the Complying Development Certificate C11-039 dated 12 October 2011 ("the CDC") for the construction of a two storey building at 31 Cornelia Road, Toongabbie ("the proposed development") issued by the first respondent is void and of no effect;
(2) the Court orders that the second and third respondents be restrained from carrying out any works on the proposed development pursuant to the CDC;
(3) the Court orders that the first, second and third respondents pay the applicant's costs of the proceedings; and
(4) the Court orders that the exhibits be returned.
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Decision last updated: 28 September 2012
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