Cavill and ORS and MULHOLLAND and ORS
[2007] WASAT 158
•19 JUNE 2007
CAVILL & ORS and MULHOLLAND & ORS [2007] WASAT 158
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 158 | |
| STRATA TITLES ACT 1985 (WA) | |||
| Case No: | CC:1951/2006 | 20 MARCH 2007 | |
| Coram: | MR P McNAB (MEMBER) | 19/06/07 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | The first issue raised by the proceeding concerning the scope of planning approval granted on 11 March 2003 and the lawfulness of land use relating to short-stay accommodation under City of Joondalup's District Planning Scheme No 2 is determined in favour of the applicants | ||
| B | |||
| PDF Version |
| Parties: | BRIAN CAVILL STEWART WILLIAMS KATHERINE KING PAT RYAN STEVE RYAN JOAN ADAMS MATTHEW GRAY GARY MULHOLLAND TOM PYE PAULINE PYE KATHRYN HIPKISS RICHARD BULLOCK DEBORAH BULLOCK RAYMOND BLOUET AUDREY BLOUET JANE RYAN STEPHEN SQUIRE STEPHEN JARVIS GODFREY RIDLEY ANGELA RIDLEY |
Catchwords: | Strata titles Enforcement of By-laws Relationship to town planning instruments Multi-storey strata apartment complex By-laws of complex required compliance with Local Government laws and regulations Whether includes town planning scheme Orders sought preventing short-term letting of apartments Alleged breach of scope of planning approval Town planning scheme incorporated earlier planning manual Effect of incorporation of planning manual by reference City Centre mixed zoning indicated Approval given in terms of "Multiple Residential Dwellings" Whether approval required permanent habitation Adherence to previous Tribunal decisions on residential habitation issue Short term accommodation and lettings found not to meet permanency of residential habitation requirement Prima facie breach of by-laws indicated |
Legislation: | City of Joondalup's District Planning Scheme No 2, cl 1.9.1, cl 1.9.3, cl 2.2, cl 3.4, cl 3.11, cl 3.2.1, cl 6.8.1(c), cl 9.8, cl 9.13, Sch 1, Part 9 Metropolitan Regional Scheme Residential Design Codes of Western Australia (2002), cl 2.2, Table 1 Strata Titles Act 1985 (WA), s 81, s 82, s 83 |
Case References: | Abbey Beach Resort Management Ltd and Water Corporation [2006] WASAT 231 Armato v Hepburn Shire [2007] VCAT 603 Derring Lane Pty Ltd v Port Phillip City Council (No 2) [1998] VSC 269 Hope and City of Joondalup [2007] WASAT 8 Mitra & Others and Green & Others [2006] WASAT 42 Moss and the Owners of Bijou Marina Village - Strata Plan 36747 & Others [2005] WASAT 180 Re Carey, Ex parte Exclude Holdings Pty Ltd (2006) 32 WAR 501 The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304 The Owners of Strata Plan 18449 and City of Joondalup [2006] WASAT 101 |
Orders | 1. The first issue raised by the proceeding concerning the scope of planning approval granted on 11 March 2003 and the lawfulness of land use relating to short-stay accommodation under City of Joondalup's District Planning Scheme No 2 is determined in favour of the applicants.,2. As a consequence, the proceeding is to be listed for directions before the Tribunal for the formulation of orders, if any, to give effect to that determination, and for consideration of the future disposition of the balance of the proceeding and for the making of any further orders as may be appropriate. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : STRATA TITLES ACT 1985 (WA) CITATION : CAVILL & ORS and MULHOLLAND & ORS [2007] WASAT 158 MEMBER : MR P McNAB (MEMBER) HEARD : 20 MARCH 2007 DELIVERED : 19 JUNE 2007 FILE NO/S : CC 1951 of 2006 BETWEEN : BRIAN CAVILL
- STEWART WILLIAMS
KATHERINE KING
PAT RYAN
STEVE RYAN
JOAN ADAMS
MATTHEW GRAY
Applicants
AND
GARY MULHOLLAND
TOM PYE
PAULINE PYE
KATHRYN HIPKISS
RICHARD BULLOCK
DEBORAH BULLOCK
RAYMOND BLOUET
AUDREY BLOUET
JANE RYAN
STEPHEN SQUIRE
STEPHEN JARVIS
GODFREY RIDLEY
ANGELA RIDLEY
- Respondents
Catchwords:
Strata titles - Enforcement of By-laws - Relationship to town planning instruments - Multi-storey strata apartment complex - By-laws of complex required compliance with Local Government laws and regulations - Whether includes town planning scheme - Orders sought preventing short-term letting of apartments - Alleged breach of scope of planning approval - Town planning scheme incorporated earlier planning manual - Effect of incorporation of planning manual by reference - City Centre mixed zoning indicated - Approval given in terms of "Multiple Residential Dwellings" - Whether approval required permanent habitation - Adherence to previous Tribunal decisions on residential habitation issue - Short term accommodation and lettings found not to meet permanency of residential habitation requirement - Prima facie breach of by-laws indicated
Legislation:
City of Joondalup's District Planning Scheme No 2, cl 1.9.1, cl 1.9.3, cl 2.2, cl 3.4, cl 3.11, cl 3.2.1, cl 6.8.1(c), cl 9.8, cl 9.13, Sch 1, Part 9
Metropolitan Regional Scheme
Residential Design Codes of Western Australia (2002), cl 2.2, Table 1
Strata Titles Act 1985 (WA), s 81, s 82, s 83
Result:
The first issue raised by the proceeding concerning the scope of planning approval granted on 11 March 2003 and the lawfulness of land use relating to short-stay accommodation under City of Joondalup's District Planning Scheme No 2 is determined in favour of the applicants
Category: B
Representation:
Counsel:
Applicants : Mr M Atkinson
- Respondents : Mr A Prime
Solicitors:
Applicants : Atkinson and Associates
Respondents : McCallum Donovan Sweeney
Case(s) referred to in decision(s):
Abbey Beach Resort Management Ltd and Water Corporation [2006] WASAT 231
Armato v Hepburn Shire [2007] VCAT 603
Derring Lane Pty Ltd v Port Phillip City Council (No 2) [1998] VSC 269
Hope and City of Joondalup [2007] WASAT 8
Mitra & Others and Green & Others [2006] WASAT 42
Moss and the Owners of Bijou Marina Village - Strata Plan 36747 & Others [2005] WASAT 180
Re Carey, Ex parte Exclude Holdings Pty Ltd (2006) 32 WAR 501
The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304
The Owners of Strata Plan 18449 and City of Joondalup [2006] WASAT 101
(Page 4)
Summary of Tribunal's decision
1 The Tribunal was asked by the owners of some units in a multi story apartment complex in Joondalup (Brookwood Apartments) (the applicants) to halt the short-term letting of certain other apartments by their respective owners (the respondents).
2 The Tribunal had authority to make orders having that effect under the Strata Titles Act 1985 (WA).
3 It was alleged that such short-term letting breached the apartment's strata title by-laws. Those by-laws required an owner to comply with local government laws and regulations. Such laws included town planning schemes.
4 The relevant town planning scheme applicable to the City of Joondalup incorporated an earlier document entitled the "Joondalup City Centre Development Plan & Manual". Under the town planning scheme, read with that earlier document, planning approval was given for Brookwood Apartments to be established as "Multiple Residential Dwellings". This was the only approval or consent in force.
5 The Tribunal took the view, following previous Tribunal decisions dealing with broadly similar issues in the City of Joondalup, that the planning approval required permanent habitation of the subject apartments.
6 The evidence showed that the respondents were engaged from time to time in arranging short-term accommodation and stays, which use was not relevantly "permanent habitation" as was understood in town planning law and practice.
7 Thus, the applicants had made out their case against the respondents and the Tribunal indicated that such orders as had been sought would be considered by the Tribunal.
Introduction and issues
8 The applicants have applied to this Tribunal for various orders which would, if granted, in effect restrain the respondents in their respective capacities as the owners of certain strata lots at the Brookwood Apartments in central Joondalup, from engaging in certain advertising and from entering into various leases or related agreements. Further, orders
(Page 5)
- are sought requiring the cancellation of certain current leases or other agreements to occupy. Other relief is also sought in relation to the alleged misbehaviour of some of the occupiers of such lots.
9 The parties have agreed on a comprehensive statement of agreed facts for the purposes of the Tribunal determining as a separate issue the main dispute relating to the consequences of such agreements to occupy.
10 In short, it is contended by the applicants that the respondents are engaged in the unlawful leasing or licensing of their Lots, the alleged illegality arising out of a failure to comply with the City of Joondalup's District Planning Scheme No 2 (DPS 2) leading to an alleged breach of the by-laws applicable to Brookwood Apartments.
11 The central issue in this proceeding is whether the approval given by the City of Joondalup under DPS 2 for the use and development of land leading to the creation of Brookwood Apartments as "Multiple Residential Dwellings" in effect authorises these letting arrangements in respect of the respondents' lots.
Subject land
12 The subject land, Brookwood Apartments, has been described as "a luxury residential complex" comprising some 38 residential units (subsequently strata lots) and certain commercial units. The apartments are three and four bedroom units in a six storey building with a basement car park and accompanying facilities, such as a swimming pool and gymnasium. The building is located at Lot 10 (No 17) Davidson Terrace, Joondalup.
13 The strata plan was registered on 20 July 2006 with a management statement. The scheme is described in the agreed statement of facts as a "multi-storey apartment complex and not a single-tier strata scheme".
By laws and their enforcement
14 The relevant by-laws applicable to the subject land, as provided for in the management statement, provide as follows (emphasis added):
16. Use of premises
16.1 [A] proprietor of a residential lot may only use his lot as a residence and the proprietor of a commercial lot may only use his lot for commercial purposes.
- 16.1.1 Notwithstanding bylaw 16.1 a proprietor of a residential lot may;
16.1.2 grant occupancy rights in respect of his lot to residential tenants; …
- 21. Behaviour
21.1 A proprietor shall not:
21.1.1 use his premises or any part of the common property for any purpose which may be in breach of the bylaws, the regulations or bylaws of the local authority or any government regulation or law;
21.1.2 use his premises for any purpose that may be illegal or immoral or injure the reputation of the scheme as a luxury residential complex.
16 Thus, in principle, an order might be made in effect restraining a proprietor of a strata lot from permitting the use of his or her property which is found to be unlawful under DPS 2.
17 First, it is necessary, as Re Carey, Ex parte Exclude Holdings Pty Ltd (2006) 32 WAR 501 instructs us (at 514 and 518), to ascertain the precise scope of what has been approved or permitted under DPS 2.
18 Here, that task is by no means straightforward.
(Page 7)
Scope of planning approval
19 By letter dated 19 March 2003 the owners of 17 Davidson Terrace Joondalup were advised by the City of Joondalup that approval to commence development upon certain conditions had been given (in fact, on 11 March 2003) in respect of the subject land. The advice conveyed the approval in the following terms:
"Joondalup Central City Development – 38 Multiple Residential Dwellings and 6 Commercial Units"
20 None of the subject lots in this proceeding are the "Commercial Units" referred to in that notice of approval.
21 The reference to "Multiple Residential Dwellings" can only be explained by further reference to the elaborate planning framework applicable to the subject land.
22 The history of such planning commences with the "Joondalup City Centre Development Plan & Manual" (JCCDPM) which is "an Agreed Structure Plan" approved under the provisions of Part 9 of DPS 2. The approval dates from 1990. In effect JCCDPM is continued in force under DPS 2: see also cl 9.13, saving adopted and approved structure plans under the previous scheme.
23 Under DPS 2 reference is made to the "The Centre Zone" in which area the subject land is located: see the accompanying DPS 2 Zone maps and the note to the Zoning Table referring to cl 3.11. In addition, under the Metropolitan Regional Scheme (MRS), the land was zoned "Central City Area".
24 So far as is relevant, cl 3.11 provides as follows (emphasis added):
"3.11 THE CENTRE ZONE
3.11.1 The Centre Zone is intended to accommodate existing and proposed business centres varying in size from small neighbourhood centres to large multi-purpose regional centres and provides for the co-ordinated planning and development of these centres or other planning precincts where the council considers that an Agreed Structure Plan is necessary.
The objectives of the Centre Zone are to:
- (a) provide for a hierarchy of centres from small neighbourhood centres to large regional centres, catering for the diverse needs of the community for goods and services;
(b) ensure that the city’s commercial centres are integrated and complement one another in the range of retail, commercial, entertainment and community services and activities they provide for residents, workers and visitors;
(c) encourage development within centres to create an attractive urban environment;
(d) provide the opportunity for the coordinated and comprehensive planning and development of centres through an Agreed Structure Plan process.
3.11.2 No subdivision or other development should be commenced or carried out in a Centre Zone until a Structure Plan has been prepared and adopted under the provisions of Part 9 of the Scheme. No subdivision should be commenced or carried out and no other development shall be commenced or carried out otherwise than in conformity with an Agreed Structure Plan.
3.11.3 The permissibility of uses in the Centre Zone subject to subclauses 9.8.2 and 9.8.3 shall be determined in accordance with the provisions of the relevant Agreed Structure Plan."
25 So far as is relevant cl 9.8 of DPS 2 provides as follows:
"9.8 OPERATION OF AGREED STRUCTURE PLAN
…
9.8.2 Where an Agreed Structure Plan imposes a classification on the land included in it by reference to reserves, zones (including Special Use Zones) or Residential Density Codes, until it
- is replaced by an amendment to the Scheme imposing such classifications:
(a) the provisions of the Agreed Structure Plan shall apply to the land within it as if its provisions were incorporated in this Scheme and it shall be binding and enforceable in the same way as corresponding provisions incorporated in the Scheme; and
(b) provisions in the Scheme applicable to land in those classifications under the Scheme shall apply with the necessary changes or alterations to the Agreed Structure Plan area.
- 9.8.3 Without limiting the generality of the preceding subclause, under an Agreed Structure Plan:
(a) in the areas designated as zones, the permissibility of uses shall be the same as set out in the Zoning Table as if those areas were zones under the Scheme, having the same designation;
(b) the standards and requirements applicable to zones and R Codings under the Scheme shall apply with the necessary changes or alterations to the areas having corresponding designations under the Agreed Structure Plan. However an Agreed Structure Plan may make provision for any standard or requirement applicable to zones or R Codings to be varied, and the standard or requirement varied in that way shall apply within the area of the Agreed Structure Plan, or any stipulated part of that area, as if it was a variation incorporated in this Scheme; and
(c) the development control procedures including (without limitation) the procedures for approval of uses and
- developments under the Scheme shall apply as if the land was correspondingly zoned or reserved under the Scheme;
- (d) provisions duplicating or substantially to the same effect as any provisions of the Scheme shall have the same force and effect in regard to the land in the Structure Plan as if they were provisions of the Scheme;
(e) … ;
(f) any other provision, standard or requirement in the Structure Plan shall be given the same force and effect as if it was a provision standard or requirement of this Scheme, but in the event of there being any inconsistency or conflict between any provision, requirement or standard of the Scheme and any provision requirement or standard of an Agreed Structure Plan, the provision requirement or standard of the Scheme shall prevail;
(g) an Agreed Structure Plan may distinguish between provisions, requirements or standards which are intended to have effect as if included in the Scheme, and provisions, requirements or standards not so intended, and it is only the provisions so intended which have that effect. Any other provisions are for guidance or information only, or such other purpose as stipulated in the Agreed Structure Plan documents."
26 In addition, under cl 6.8.1(c) "due regard" must be had to an Agreed Structure Plan when considering an application for planning approval.
27 Thus, it is tolerably clear that partly at least by use of the device of incorporation by reference, the JCCDPM is, as far as is practicable, to be applied as if it were a provision (or, in some cases, a corresponding provision) of DPS 2.
(Page 11)
28 Under JCCDPM the subject land is shown in the "Central Business District" on the district map. The mixing of land uses was therein indicated (accommodation and residential are specifically mentioned, but not defined) with the following particular reference substituted in 1998 in relation to designated land use described as "Residential/Mixed Use" (which indication is, by agreement, applicable here):
"A1.3 Residential/Mixed Use
The City may permit development up to [R 100 density coding] where the City considers that this has been demonstrated to create an appropriate landmark which enhances the overall legibility and amenity of the City Centre.
The provisions of the Residential Planning Codes [R Codes] for multi-unit developments may be used as a guide in developments that mix commercial with residential uses."
30 Thus, the planning approval given by the respondent for land use or development which is classified as "Multiple Residential Dwellings and … Commercial Units" in relation to the subject land, on its face, does not seem in any way inconsistent with the planning framework just outlined. Although Mr Prime is correct to emphasise the flexibility and generality of the scheme, and the "vibrant nature" of the proposed City Centre, particularly with its mixed land use emphasis, the fact remains that approval was given in terms which are, as will appear below, tantamount to a term of art in planning law, either generally or in relation to DPS 2.
31 Perhaps more importantly, whatever the precise scope of that approval is, "no other development [is to] be commenced or carried out otherwise than in conformity with [the] Agreed Structure Plan.": cl 3.11.2. The combined effect of JCCDPM and DPS 2 would be to require further planning approval for land use or development which was not in respect of "Multiple Residential Dwellings and … Commercial Units": see also cl 6.2.1 on "change of a use on land".
(Page 12)
32 It is clear that on the unequivocal written evidence supplied by or from the local authority (the City of Joondalup), and uncontested as to material substance, that no such subsequent or alternative approval has been furnished: see, for example, their correspondence to Mr Poliwka (the strata manager) dated 2 March 2007. The Tribunal accepts this written evidence to the extent that it fully sets out the approvals or consents relating to the land (but not as to any opinion as to any such approval's effect or intention).
33 Thus, the permitted use or development of the subject land is, so far as it is relevant, solely confined to "Multiple Residential Dwellings".
34 The phrase "Multiple Residential Dwellings" is not defined in DPS 2. However, the terms "multiple dwelling", "dwelling" and "residential building" are defined (in Sch 1 of DPS 2), importantly, by reference to the definitions appearing in the R Codes, as follows (emphasis added):
Multiple dwelling:
"A dwelling in a group of more than one dwelling on a lot where any part of a dwelling is vertically above part of any other but does not include a Grouped Dwelling."
Dwelling:
"A building or portion of a building being used, adapted, or designed or intended to be used for the purpose of human habitation on a permanent basis by a single person, a single family, or no more than six persons who do not comprise a single family."
Residential Building:
"A building or portion of a building, together with rooms and outbuildings separate from such building but incidental thereto; such building being used or intended, adapted or designed to be used for the purpose of human habitation:
• temporarily by two or more persons; or
• permanently by seven or more persons,
who do not comprise a single family, but does not include a hospital or sanatorium, a prison, a hotel, a motel, or a residential school."
(Page 13)
35 It is common ground that the subject land has not been developed as "Grouped Dwelling".
36 In TheOwners of Strata Plan 18449 and City of Joondalup [2006] WASAT 101 (for earlier proceedings see TheOwners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304) it was decided, in relation to DPS 2, that land approved for use or development as "Holiday village/resort" (terms which are separately defined under DPS 2) could not be subsequently approved for use as "extended stay residential", a term not defined, (contemplating extended stays of up to two years maximum), because such use would be in "the form and nature of [a] proposed use [which is to be] correctly categorised as 'multiple dwelling'". Thus, the proposed development would not "conform to" the provisions of the R Codes and would be incapable of approval under DPS 2. After setting out the definition of "dwelling" set out above, the Tribunal said (at par 14-15):
"The key words, in the context of this matter, are 'habitation on a permanent basis'. The respondent [City] submits that a fixed period should be regarded as being a 'permanent basis' if the period is of sufficient length to evidence an intention that the place is the occupant's permanent place of residence, and not merely holiday or temporary accommodation with the person returning later to his or her permanent abode. The respondent maintains that a period of up to two years is of such a length and is consistent with that intention.
Further, the respondent submits that the description of the proposed use, 'extended stay residential', emphasises that what is proposed is a residential use of the existing development and that the units are proposed to be used as an occupier's residence or permanent and usual place of abode and therefore for the purpose of 'human habitation on a permanent basis'".
37 In Hope and City of Joondalup [2007] WASAT 8 the Tribunal considered, under DPS 2, a change of use in a low density residential area from "single house" to "short stay accommodation" for families of up to eight members for periods of seven to 60 days.
38 The Tribunal there decided that the proposed use was not relevantly residential development, as it "did not involve human habitation on a permanent basis". The proposed use was, therefore, not consistent with the objectives and purposes of the residential zone. See the discussion at
(Page 14)
- par 19 to par 22 and, in particular, the application of Derring Lane Pty Ltd v Port Phillip City Council (No 2) [1998] VSC 269, as follows:
"The expression 'residential development', which is used in each of the first two paragraphs of cl 3.4 of the Scheme [DPS 2], is not defined in the Scheme or in the [R Codes]. Clause 1.9.3 of the Scheme provides that words and expressions used in the Scheme, but not defined in Sch 1, elsewhere in the Scheme or in the Codes, shall have their normal and common meanings. The adjective 'residential' is relevantly defined in The Macquarie Dictionary (4th ed, Macquarie, Sydney, 2005) at page 1024 as 'of or relating to residence or residences'. The noun 'residence' is relevantly defined as 'the place, especially the house, in which one resides; dwelling place; dwelling'. The verb 'reside' is relevantly defined as 'to dwell permanently or for a considerable time; have one's abode for a time: he resided in Box Hill. - phrase'. The noun 'abode' is relevantly defined at page 3 as 'a dwelling place; a habitation'. The words 'dwelling place' and 'habitation' are defined at page 445 and page 639, respectively, as 'a place of residence or abode' and 'a place of abode; dwelling'. The normal and common meaning of 'residential development' is, therefore, development in which people dwell permanently or for a considerable time, or where people have their abode for a time. Similarly, in Derring Lane Pty Ltd v Port Phillip City Council (No 2) [1998] VSC 269, the Victorian Supreme Court, having referred to the dictionary definition of 'residential' in the Oxford English Dictionary, concluded that:
'the phrase 'residential building' must be taken to refer to a building constructed for the purpose of people dwelling there permanently or for a considerable period of time, or having in that building their settled or usual abode.'
Having set out this quotation from Derring Lane Pty Ltd v Port Philip City Council (No 2), the State Administrative Tribunal determined in The Owners of Strata Plan 18449 and City of Joondalup [2006] WASAT 101 at [23] as follows:
'Similarly, in this instance "residential" must be taken to mean the use of a building for one's usual place of abode on a permanent basis or for a considerable time.'
- However, the context in which the expression 'residential development' appears in cl 3.4 of the Scheme emphasises that the expression relevantly involves permanent accommodation, rather than accommodation for a considerable time or an abode for a time. The second paragraph of cl 3.4 [of DPS 2] states that '[r]esidential development is provided for at a range of densities' through the application of residential density codings under the Codes. The objectives refer only to residential development in the form of single residential development, grouped and multiple dwellings and aged persons housing. Under cl 1.9.1 and Sch 1 of the Scheme, the terms 'aged or dependent person', 'grouped dwelling' and 'multiple dwelling' have the same meaning as set out in the [R Codes]. Table 1 of the [R Codes], which identifies the residential density codings, refers to only three types of residential development, namely, single house, grouped dwelling and multiple dwelling. The definition of each of these terms in cl 2.2 of the [R Codes] is posited on the development involving a 'dwelling', which is defined [as appears above]."
39 This Tribunal, in Abbey Beach Resort Management Ltd and Water Corporation [2006] WASAT 231, applied Derring Lane to conclude that syndicate members and lot owners in a strata resort/managed investment were not residential customers of the Water Corporation in respect of certain sewerage charges.
40 Thus, upon the application of these authorities, an approval for use or development by or under DPS 2 (in relation to JCCDPM) in terms of "Multiple Residential Dwellings" connotes permanent residing or accommodation in respect of relevant lots on the land the subject of the use or development approval.
41 To the extent that McLure JA appears to suggest otherwise in relation to a similar issue concerning the Shire of Busselton's Town Planning Scheme (TPS 20) (see Re Carey, Ex parte Exclude Holdings Pty Ltd (2006) 32 WAR 501 at 534-535) this Tribunal, with respect, intends to follow Owners of Strata Plan 18449 and City of Joondalup [2006] WASAT 101 and Hope and City of Joondalup [2007] WASAT 8 unless and until they are found to be erroneous in their application of what might be considered to be orthodox town planning principles concerning land use under DPS 2.
(Page 16)
42 The situation, however, is not always as clear as it perhaps should be. Hence, these related concerns expressed by a Deputy President of VCAT in a recent town planning case in that jurisdiction (Armato v Hepburn Shire [2007] VCAT 603 at par 20-21, footnote omitted, emphasis added):
"The case of Derring Lane regarding the distinction between residential building and motel illustrates the difficulties associated with characterising land uses where definitions are extremely broad and where there is a lack of rigour and consistency displayed in the way which terms such as 'reside', 'residential' and 'residence' are used in specific definitions nested within broad terms. Certainly in terms of the land use terms nested within 'residential building', distinctions between permanent or long stay accommodation and short stay accommodation are not maintained and there are contradictions in the way in which the defining concept of 'residential' is applied.
So far as the present case is concerned, if I leave aside the anomalies that backpackers lodge and motel represent [being included] within the nested term 'residential building', a house used for short term rental accommodation does not have a residential character if 'residential' is given the meaning ascribed to it inDerring Laneand other cases of relating to a place where people have their settled or usual abode. Nor does such a house share the other common characteristic of uses nested within the term 'residential building' of being a building that offers multiple units of accommodation to multiple individuals or groups who are not necessarily related or connected to one another. I therefore conclude that Holly Lodge [the subject land in that case] is not a residential building."
43 Upon the agreed facts in this case, are there or are there not such acts of permanent residing, in relation to land use, taking place upon the relevant lots on the subject land? The comprehensive statement of agreed facts for the purposes of these proceedings includes the following:
"37. The use to which the 38 residential units are currently being put is, in part, permanent residential and, in part, short stay accommodation.
(Page 17)
- 38. The use of the 38 residential units as permanent residential falls within the definition [see above] of "Multiple Dwelling".
39. Whether the use of the 38 residential units for short stay accommodation falls within the definition of "Multiple Dwelling" is to be determined by the Tribunal."
44 The precise issue, however, is whether the scope of the City's planning approval of 11 March 2003 for "Multiple Residential Dwellings" permits such short-stay accommodation.
45 The respondents admit to "at various times" since 2006 having "let their respective lots for periods [of] less than 60 days". Mr Prime's concessions, on behalf of the respondents, regarding short stay accommodation are entirely appropriate and proper. There is an abundance of evidence to that effect (see, for example, agreed fact 49 on the advertising on websites and in various newspapers "for short-stay and/or holiday accommodation" and see annexure 1 on the record of short-term lettings of apartments 101, 204, 208, 306, 307 and 402, based upon material discovered by the respondents).
46 Short-stay accommodation, whatever its precise scope, is on the agreed facts conceptually inimical to the notion of permanently residing:see Hope and City of Joondalup [2007] WASAT 8 at [30]. It follows that, upon the present state of authority, and on the view taken by the Tribunal of the scope of planning approval, Mr Atkinson has made out this stage of the applicants' case against the respondents.
47 The Tribunal will hear from counsel on the further disposition of the proceeding and the orders, if any, which might need to be made to give effect to these reasons.
Orders
48 For the foregoing reasons the Tribunal makes the following orders:
1. The first issue raised by the proceeding concerning the scope of planning approval granted on 11 March 2003 and the lawfulness of land use relating to short-stay accommodation under DPS 2 is determined in favour of the applicants.
2. As a consequence, the proceeding is to be listed for directions before the Tribunal for the formulation of
- orders, if any, to give effect to that determination, and for consideration of the future disposition of the balance of the proceeding and for the making of any further orders as may be appropriate.
I certify that this and the preceding [48] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
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