City of Swan v West Australian Shalom Group Inc
[2017] WASC 217
•3 AUGUST 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: CITY OF SWAN -v- WEST AUSTRALIAN SHALOM GROUP INC [2017] WASC 217
CORAM: BANKS-SMITH J
HEARD: 27 JANUARY & 8 FEBRUARY 2017
DELIVERED : 3 AUGUST 2017
FILE NO/S: GDA 7 of 2016
BETWEEN: CITY OF SWAN
Applicant
AND
WEST AUSTRALIAN SHALOM GROUP INC
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram :MR P McNAB (SENIOR MEMBER)
Citation :WEST AUSTRALIAN SHALOM GROUP INC and CITY OF SWAN [2016] WASAT 41
File No :DR 299 of 2015
Catchwords:
Planning - Local Planning Scheme - Use - Whether residential building - Whether community purpose - Where those terms defined
Statutory interpretation - Meaning of defined terms in Local Planning Scheme
Appeal from State Administrative Tribunal - Appeal on question of law - Whether Tribunal had proper regard to defined terms - Whether open to Tribunal to imply terms in definitions
Legislation:
Planning and Development Act 2005 (WA), s 26, s 87(4), s 252
State Administrative Tribunal Act 2004 (WA), s 105
Result:
Leave to appeal granted
Appeal allowed
Notice of contention dismissed
Leave to cross-appeal granted
Cross-appeal allowed
Decision of Tribunal set aside
Remitted to Tribunal for further consideration and determination
Category: A
Representation:
Counsel:
Applicant: Mr K M Pettit SC & Mr P L Wittkuhn
Respondent: Mr P Lochore
Solicitors:
Applicant: McLeods Barristers & Solicitors
Respondent: Steenhof Brothers Barristers & Solicitors
Case(s) referred to in judgment(s):
Abbey Beach Resort Management Ltd v Water Corporation Ltd [2007] WASC 268
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Attorney General (NT) v Hand [1991] HCA 17; (1991) 172 CLR 185
Burwood Municipal Council v Aboriginal Hostels Ltd (1979) 39 LGRA 150
Byrne v The Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153
Byrne v The Owners of Ceresa River Apartments Strata Plan 55597 [2017] WASCA 104
Cavill and Mulholland [2007] WASAT 158
Centex Australasia Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 79
Certain Lloyds Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378
Chiefari v Brisbane City Council [2005] QPELR 500; [2005] QPEC 9
City of Kwinana v Lamont [2014] WASCA 112; (2014) 201 LGERA 334
City of Mandurah v Australian Flying Corps & Royal Australian Air Force Association (WA Division) Inc [2016] WASCA 185
Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389
Derring Lane v Port Phillip City Council (No 2) [1999] VSC 269; (1999) 108 LGERA 129
Esso Australia Resources Pty Ltd v Commissioner of Taxation [2011] FCAFC 154; (2011) 199 FCR 226
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503
GrainCorp Operations Ltd v Liverpool Plains Shire Council [2013] NSWCA 171; (2013) 194 LGERA 83
Harburg Investments Pty Ltd v Brisbane City Council [2000] QPELR 313
Herdsman Neighbourhood Centre and Town of Cambridge [2006] WASAT 314
Hope and City of Joondalup [2007] WASAT 8
Marana Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 307; (2004) 141 FCR 299
McGraw-Hinds (Aust) Pty Ltd v Smith (1978) 144 CLR 633
Neil v Legal Profession Complaints [No 2] [2012] WASCA 150
North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd (1990) 21 NSWLR 532; (1990) 71 LGRA 432
Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320
Owners of Ceresa River Apartments Strata Plan 55597 and Haines [2015] WASAT 72
Owners of Shin Kobe Maru v Empire Shipping Co Inc [1994] HCA 54; (1994) 181 CLR 404
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Penola and District Ratepayers' and Residents' Association Inc v Wattle Range Council [2011] SASCFC 62; (2011) 110 SASR 110
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 21; (1998) 194 CLR 355
Re Shire of Mundaring; Ex Parte Solomon [2007] WASCA 132
St Vincent de Paul Society Inc and City of Albany (Unreported, WASAT, 4 May 2015)
Su and City of Canning [2011] WASAT 34
Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531
The Owners of Strata Plan No 3397 v Tate [2007] NSWCA 207; (2007) 70 NSWLR 344
The Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd [2016] WASCA 36
Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510
Urquhart v City of Mount Gambier (1995) 66 SASR 26; (1995) 89 LGERA 57
VBI Properties Pty Ltd v Port Phillip City Council [2000] VCAT 885
VBI Properties Pty Ltd v Victorian Civil and Administrative Tribunal [2001] VSC 22
West Australian Shalom Group Inc and City of Swan [2016] WASAT 41
Western Australian Planning Commission v Narcom Holdings Pty Ltd [2011] WASC 259
Westfield Management Ltd v Pine Rivers Shire Council [2004] QPELR 337
BANKS-SMITH J:
Introduction
This appeal concerns the use of Shalom House. Shalom House is a building divided into five separate living units, situated on a large rural property in Henley Brook in the Swan Valley.
The respondent (Shalom) is a registered charity that operates (in its words) a 'holistic live‑in restoration program providing services to men who are trapped by life‑controlling issues' at the property. It offers supervised rehabilitation for men afflicted by issues such as substance abuse and incarceration. Shalom House accommodates up to 30 men at any one time and the overall program offered by the respondent typically lasts for 12 months. The participants undertake paid work (both on and off site) and there is a compulsory programme of spiritual learning in accordance with Christian philosophies.
The property is subject to the City of Swan Local Planning Scheme 17 (LPS 17). Under LPS 17, the property is zoned Rural‑Residential.
Shalom applied to the respondent (City) to change the approved use of the property from that of 'grouped dwelling' to 'community purpose'. The City refused the application, determining that the use of the property was properly classified as 'residential building'. 'Residential building' is a use not permitted on the property under LPS 17.
Shalom applied to the State Administrative Tribunal under s 252(2) of the Planning and Development Act 2005 (WA) (PDA) for review of the City's decision.
Judge Parry ordered that the following issues be determined by the Tribunal as a preliminary issue:
Whether the proposed development is properly classified as:
(a)'Residential Building' and therefore prohibited,
(b)'Community Purpose' and therefore capable of approval, or
(c) a use not listed and therefore capable of approval,
under [LPS 17].
The preliminary issue was heard and determined by Senior Member McNab. He answered the questions and ordered as follows:[1]
[1] West Australian Shalom Group Inc and City of Swan [2016] WASAT 41 [62] (Reasons).
1.The answers to the preliminary questions reserved for decision are as follows:
i.Is the proposed development a 'Residential Building' and therefore prohibited? Answer: 'No'.
ii.Is the proposed development a 'Community Purpose' and therefore capable of approval? Answer: 'No'.
iii.Is the proposed development a use not listed and therefore capable of approval under the City of Swan Local Planning Scheme 17? Answer: 'Yes'.
2.Pursuant to s 31(1) of the State Administrative Tribunal Act 2004 (WA) the respondent is invited to reconsider its decision under review, consistently with these reasons for decision, and as soon as is practicable.
The City seeks leave to appeal that decision to this court under s 105 of the State Administrative Tribunal Act2004 (WA) (SAT Act). Shalom has filed a notice of contention and application for leave to cross‑appeal. Orders were made by consent that the applications for leave and the appeal and cross‑appeal be heard together.
The planning framework
As noted above, the property is subject to LPS 17. Under Part 4 of LPS 17, the scheme area is divided into zones. The relevant property is zoned Rural‑Residential.
The objectives for each zone are set out and it is intended that the Council will have regard to those objectives when called upon to exercise its discretion, for example when considering the appropriateness of discretionary uses in zones or uses not listed.[2]
[2] LPS 17 cl 4.2.
The objectives for Rural‑Residential are to:[3]
(a)provide for low density residential development and associated rural‑residential activities in comprehensively planned estates;
(b)recognise the environmental characteristics of the landscape, including landform, water resources, remanent vegetation, and native fauna, and to ensure as far as practicable, that these characteristics are not compromised by development and use of the land;
(c)encourage the rehabilitation of degraded areas through selected replanting of indigenous flora, and the creation and enhancement of habitat for indigenous fauna.
[3] LPS 17 cl 4.2.17.
Part 4.3 includes a zoning table that indicates whether certain uses of land are permitted in the various zones.
By the zoning table, the class of use of 'residential building' is designated 'X', which means 'not permitted' in a Rural‑Residential zone.[4] There is no room for the exercise of discretion.
[4] LPS 17 cl 4.3.2.
Schedule 1 of LPS 17 contains definitions. 'Residential building' is defined by incorporating the definition of that term in the Residential Design Codes (RDC), being state planning policy 3.1 made under s 26 of the PDA.
That definition is as follows:
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.
The parties both contend that the formatting in the RDC as reflected above is in error and it should be:
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.
I agree with that contention, which follows logically. For ease of reference I will refer to the first bullet point in the definition as 'the temporary limb' and the second bullet point as 'the permanent limb'.
The definition of 'dwelling' is also important. LPS 17 incorporates the RDC definition:
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.
Read together, the following is apparent:
(a)'dwelling' will apply in the case of human habitation on a permanent basis by up to six persons or by a single family whose members exceed six;
(b)'residential building' will apply in the case of human habitation on a permanent basis if the numbers of persons are seven or more but not a single family;
(c)'residential building' will also apply in the case of human habitation on a temporary basis (regardless of the number of persons), apart from temporary use by only one person.
'Single house' is also defined by incorporating the definition in the RDC. It is defined as, relevantly, a 'dwelling' standing wholly on its own green title or strata title: the reference to 'dwelling' in its definition therefore limits its operation.
The class of use of community purpose is designated 'D',[5] which means 'not permitted unless [the City] exercises its discretion by granting planning approval'.[6]
[5] The Tribunal refers to 'community purpose' being categorised as an 'A' use at [10.4] of its Reasons, but the parties agree that the correct categorisation is 'D'. Nothing turns on this.
[6] LPS 17 cl 4.3.2.
'Community purpose' is defined in schedule 1 of LPS 17 and means:
[T]he use of premises designed or adapted primarily for the provision of educational, social or recreational facilities or services by organisations involved in activities for community benefit.
The parties are in agreement that the use does not fall within 'dwelling' or 'single house' and that there are no other categories apart from 'residential building' and 'community purpose' that are relevant to the disposition of this appeal.
For uses that are not specifically listed in the zoning table, cl 4.4.2 provides as following:
If a person proposes to carry out on land any use that is not specifically mentioned in the Zoning Table and cannot reasonably be determined as falling within the type, class or genus of activity of any other use class the local government may -
(a)determine that the use is consistent with the objectives of the particular zone and is therefore permitted;
(b)determine that the use may be consistent with the objectives of the particular zone and thereafter follow the advertising procedures of clause 9.4 in considering an application for planning approval; or
(c)determine that the use is not consistent with the objectives of the particular zone and is therefore not permitted.
The facts
The hearing before the Tribunal proceeded on the basis of a lengthy statement of agreed facts. The Tribunal incorporated those facts in the Reasons and they are included in these reasons by way of schedule.[7]
[7] Reasons [8].
Tribunal's Reasons
The Reasons proceeded as follows:
(a)the Tribunal recited the relevant planning framework, including setting out in full the definition of 'residential building';[8]
[8] Reasons [10].
(b)it stated that it was common ground that only sub‑paragraph (b) (the permanent limb) of the definition of 'residential building' was in issue;[9]
[9] Reasons [11(a)].
(c)the Tribunal considered the exclusions in the definition, noting that the only exclusion potentially relevant was 'sanatorium'. It found that its use was not as a sanatorium;[10] and that any 'treatment' to residents at Shalom House was incidental to the general activities carried out there;[11]
[10] Reasons [15].
[11] Reasons [20] ‑ [21].
(d)the Tribunal referred[12] to Derring Lane v Port Phillip City Council (No 2),[13] citing Balmford J's statement that:[14]
[12] Reasons [25] ‑ [28].
[13] Derring Lane v Port Phillip City Council (No 2) [1999] VSC 269; (1999) 108 LGERA 129.
[14] Derring Lane [16].
[T]he phrase 'residential building' [in a planning context] 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.
(e)the Tribunal referred[15] to VBI Properties Pty Ltd v Port Phillip City Council.[16] The Tribunal placed weight on the reference in VBI Properties to Derring Lane, and also on a quoted extract from an earlier planning determination relating to the subject site:[17]
[15] Reasons [25], [29].
[16] VBI Properties Pty Ltd v Port Phillip City Council [2000] VCAT 885 (VBI Properties).
[17] Reasons [29].
We consider that an important part of the distinction between a residential building and a tourist establishment is the relationship of the inmates to it. A residential building is the home or abode, even if only temporarily, of a person living there. On the other hand a traveller, tourist or person engaged in recreational pursuits might stay temporarily at a tourist establishment but his or her home would be elsewhere.
(f)the Tribunal said that if Derring Lane were to be applied, then the exclusions in the definition of 'residential building' in LPS 17 exclude categories of land use 'that ordinarily incorporate accommodation for persons whose "home" would, in any case, be clearly "elsewhere"';[18]
[18] Reasons [30].
(g)the Tribunal then considered GrainCorp Operations Ltd v Liverpool Plains Shire Council,[19] noting the relevance of aggregate time spent in an accommodation village;[20]
[19] GrainCorp Operations Ltd v Liverpool Plains Shire Council [2013] NSWCA 171; (2013) 194 LGERA 83.
[20] Reasons [33] ‑ [34].
(h)the Tribunal then considered the manner in which the use of Shalom House might be characterised;
(i)in so doing, it considered various time periods of occupation for programmes that had been considered under other planning regimes and instruments, noting examples where occupation in a 'healing home' was one to two weeks (and found to be a guest house) and six to ten months for a Salvation Army Bridge Program (and found to be a hospital);
(j)having considered factual differences and similarities with such programmes,[21] the Tribunal did not make a finding as to the characterisation of use of Shalom House. Instead, it found as follows (this being the crucial finding):[22]
[I]n my view, if Derring Lane counts as good law in this State, as seems to be the case, then on a proper construction of the prohibition, the applicant's use, however precisely characterised, is not for the purpose of a 'residential building'. In short, the accommodation provided lacks the permanency required; it is not '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': Derring Lane at [16].
(k)the Tribunal then considered whether the use was a 'community purpose', and determined as follows:[23]
In my view, a 'community purpose' for town planning purposes is a purpose that focuses on use by a group of persons (undefined and flexible in terms of numbers and composition) who reside in or are associated with a particular locality, one that is more or less geographically local to those members, and whose members broadly share, have or hold similar identity, needs, characteristics or aims. Such a group is not a matter of precise scientific calculation, organisation or classification but is to be generalised as a 'social fact'.
So understood, the applicant's operation here does not meet the inherent requirements of sufficient localism that is the premise of a 'community purpose' under LPS 17. This is so, even if the applicant is otherwise engaged in the provision of educational, social or recreational facilities or services and is an organisation 'involved in activities for community benefit'.
(l)having found what it said was the requisite sufficient localism to be absent, the Tribunal did not then consider the elements of the definition.
[21] Reasons [44] ‑ [48].
[22] Reasons [49].
[23] Reasons [60] ‑ [61].
Grounds of appeal, notice of contention and cross‑appeal
The respective grounds of appeal, notice of contention and cross‑appeal are as follows (with inconsequential editing):
The City's Grounds of appeal
1. Having correctly found that approximately 30 men at a time resided on the land, for about 12 months' residence for each man, the Tribunal erred in law in failing to hold that the use of the land was 'residential building' for the purposes of LPS 17, and accordingly erred in law in failing to dismiss Shalom's application for review.
2. The Tribunal erred in law in finding at [11] of the Tribunal's reasons that the City did not rely on the first dot‑point of the definition of 'residential building' for the purposes of LPS 17, when there was no evidence or submission capable of supporting that finding.
Shalom's Notice of contention
While the Tribunal correctly concluded that Shalom's use, however, precisely characterised, is not for the purpose of a 'residential building', it erred in finding that this was so only for a single reason. More specifically, the Tribunal erred in law by not finding that this conclusion was required additionally because characterisation of the purpose as 'residential building' puts the use at such a level of generality that it fails to embrace the reality of Shalom's use for town planning purposes.
Shalom's grounds of cross‑appeal
1. The Tribunal erred in law by finding that a 'community purpose' for town planning purposes is a purpose that focuses on use by a group of persons who reside in or are associated with a particular locality, one that is more or less geographically local to those members.
2. The Tribunal erred in law by finding that Shalom's operation does not meet the inherent requirements of sufficient localism that is the premise of 'community purpose' under LPS 17.
Summary of the respective submissions
In summary, the City says:
(a)the use of Shalom House falls within the definition of a 'residential building'. The use meets that of 'residential building' because it provides temporary accommodation to more than two persons (the temporary limb);
(b)the Tribunal did not address the temporary limb. Had it done so, it would have determined it was a 'residential building'. The City does not contend that its use falls within the permanent limb;[24]
(c)use as a residential building is prohibited under LPS 17;
(d)the Tribunal properly found that its use is not a 'community purpose'; and
(e)if the City is wrong and it is not a 'residential building', then its use is 'not listed'.
[24] Applicant's outline of submissions filed 28 September 2016 [34], [40].
Shalom says:
(a)the use of Shalom House is such that it is not a 'residential building' because the accommodation lacks the permanency required, and accordingly the Tribunal's determination on that point was correct;
(b)it is not open to the City to now rely upon the temporary limb as it did not run its argument below on that basis;
(c)use of the word 'residential' in any event requires that the use be as a settled abode;
(d)the use is such that it is different from and ought not be considered a 'residential building' because of its focus on holistic recovery;
(e)however, if the court were to find that Shalom House is a 'residential building', then it pursues its cross‑appeal, and asserts the element of localism required for 'community purpose' is met by Shalom House's operations.
Nature of an appeal - leave required and on a question of law
An appeal to this court from a decision of the Tribunal may only be brought by leave and on a question of law.[25]
[25] SAT Act s 105(1), s 105(2).
An appeal on a question of law is in the nature of judicial review proceedings; the existence of a question of law is not merely a qualifying condition for, or a gateway to, an appeal, but is the subject of the appeal itself; an appeal on a question of law does not, and should not, open the door to an appeal by way of rehearing.[26]
[26] Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320 [18], [20] ‑ [21]; Neil v Legal Profession Complaints [No 2] [2012] WASCA 150 [12]; City of Mandurah v Australian Flying Corps & Royal Australian Air Force Association (WA Division) Inc [2016] WASCA 185 [36] ‑ [38].
The proper construction of a statute or instrument is a question of law.[27]
[27] See generally Byrne v The Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153 [33] (and cases cited).
Leave to appeal should be granted if, in all of the circumstances, it is in the interests of justice to do so.[28]
[28] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361, 372 [16] ‑ [17].
General statutory construction principles
LPS 17 is made under pt 5 div 1 of the PDA and is subsidiary legislation.[29] It came into operation on 18 February 2008 on being published in the Western Australian Government Gazette. By virtue of s 87(4) of the PDA a local planning scheme when approved by the Minister and published in the Western Australian Government Gazette has full force and effect as if it were enacted by the PDA.
[29] Interpretation Act 1984 (WA) s 5.
The relevant principles with respect to the construction of statutes and subsidiary or delegated legislation were summarised in The Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd.[30] The task of statutory construction begins and ends with a consideration of the statutory text.[31] The meaning of the text is to be determined by reference to its context, in its widest sense, including the general purpose and policy of the provision.[32] However, the purpose is to be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the provisions.[33]
[30] The Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd [2016] WASCA 36 [119] ‑ [131] (Buss JA), [272] ‑ [274] (Murphy JA); City of Kwinana v Lamont [2014] WASCA 112; (2014) 201 LGERA 334 [47].
[31] Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 [39] citing Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [47].
[32] Pilbara Infrastructure [121] citing Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 21; (1998) 194 CLR 355 [69]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [47]; Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510 [82].
[33] Pilbara Infrastructure [123] citing Certain Lloyds Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [26]. See generally Dharmananda J and Firios L, Interpreting statutes and contracts: A distinction without a difference? (2015) 89 Australian Law Journal, 580.
The general principles with respect to the construction of statutes apply to the construction of subsidiary or delegated legislation.[34] In the case of subsidiary legislation the context includes the statute under which the legislation has been made.[35]
[34] Pilbara Infrastructure [131] citing Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389, 398 (Brennan CJ, Dawson, Toohey, Gaudron & McHugh JJ). See also Re Shire of Mundaring; Ex Parte Solomon [2007] WASCA 132 [23] (McLure JA).
[35] Pilbara Infrastructure [131] citing The Owners of Strata Plan No 3397 v Tate [2007] NSWCA 207; (2007) 70 NSWLR 344 [36].
It is a relevant aspect of the context of words in a planning scheme that they were not drafted by a Parliamentary draftsperson.[36] Accordingly a planning scheme should be construed broadly rather than pedantically and with a sensible practical approach.[37] However, that does not mean that different rules of construction apply.[38]
[36] Western Australian Planning Commission v Narcom Holdings Pty Ltd [2011] WASC 259 [37].
[37] Re Shire of Mundaring; Ex Parte Solomon [25] (McLure JA) citing Westfield Management Ltd v Pine Rivers Shire Council [2004] QPELR 337 [18]; Harburg Investments Pty Ltd v Brisbane City Council [2000] QPELR 313 [31].
[38] Chiefari v Brisbane City Council [2005] QPELR 500; [2005] QPEC 9 [9] ‑ [10]; Western Australian Planning Commission v Narcom Holdings Pty Ltd [37].
In Taylor v The Owners - Strata Plan No 11564, French CJ, Crennan and Bell JJ said:[39]
The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills 'gaps disclosed in legislation' or makes an insertion which is 'too big, or too much at variance with the language in fact used by the legislature'.
[39] Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 [38].
In the same case, Gageler and Keane JJ observed:[40]
The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair.
[40] Taylor v The Owners [65] (Gageler & Keane JJ in dissent in the result).
Ground 2
It is convenient to start with ground 2 of the appeal. In my view, ground 1 does not properly articulate a ground of appeal. It challenges the result but does not identify the error said to have caused the result. The real complaint intended to be addressed by ground 1 (according to the submissions) is that had the facts been applied to the definition properly construed, the Tribunal ought to have found that the use of Shalom House fell within the temporary limb of the definition of 'residential building'. As both parties addressed that issue, the submissions with respect to appeal ground 1 are taken into account in the consideration of ground 2.
Did the Tribunal err in assuming the City did not rely on the temporary limb of the definition
In order to properly assess this ground, it is first necessary to consider the manner in which Shalom, as the applicant before the Tribunal, framed its argument as to 'residential building'.
The temporary limb was raised briefly in Shalom's submissions filed in the Tribunal but then abandoned prior to the hearing. Further, its submissions to the effect that the habitation lacked the requisite degree of permanency to be a 'residential building' were also abandoned.[41]
[41] Tribunal ts 8.
That left the following contentions in its submissions:[42]
Residential Building use is an inappropriate classification for [Shalom's] use of the subject property because:
a.the residential component of the applicant's use is ancillary; and
b.the characterisation of the purpose as residential building puts the use at such a level of generality that it fails to embrace the reality of the use.
[42] Affidavit of Peter Wittkuhn sworn 20 May 2016, attachment PLW 9, 75.
The approach of abandoning the submissions that focussed on the issue of temporary or permanent human habitation in the definition of 'residential building' inevitably reduced the focus on those issues and heightened the focus on Shalom's characterisation argument.
However, that is not to say that the issue of the application of the definition was not live. The City's written submissions before the Tribunal commence by setting out the definition (including both limbs) and the oral argument proceeded on the basis that it contended the use fell within the definition. The City referred to cases that were relevant (at least in part) because of their focus on temporary accommodation.[43] Shalom contends that although those cases were referred to, the City did not clearly specify that it relied upon the temporary limb. In my view, even accepting that may be so, it does not follow that the City did not proceed on the basis the definition was relevant.
[43] Su and City of Canning [2011] WASAT 34; St Vincent de Paul Society Inc and City of Albany (Unreported, WASAT, 4 May 2015) (Member Ward).
The Tribunal appears to have assumed on the basis of Shalom's abandonment of certain submissions that neither party asserted the particular terms of the definition were relevant. On reading the transcript and reading the written submissions filed with the Tribunal, I do not consider that the City made any concession or representation that it did not assert the temporary limb was relevant. To the contrary, the City's position was clearly that the use fell within the definition of 'residential building'. That called for the definition as a whole to be properly considered.
Shalom contends outcome would not be different even if temporary limb considered
Shalom submits that even if the Tribunal erred by wrongly assuming the temporary limb was not relied upon, then the outcome would be no different (a matter relevant, at least, to the question of whether leave should be granted). Shalom says this is so because the Tribunal at [49]:[44]
(a)found that a residence is a place used as one's settled abode;
(b)found that the accommodation is not 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 (relying upon Derring Lane); and
(c)such findings apply to both limbs of the definition.
[44] Respondent's outline of submissions filed 5 October 2016 [26], [31].
Shalom submits that 'on the authorities, residence includes an intention to treat the place as home, or one's settled or usual place of abode'.[45]
[45] Respondent's outline [39].
As the express words of the definition do not qualify 'residential building' in that manner, the effect of Shalom's submission is that they are to be taken as incorporated or implied. There are difficulties with Shalom's contention.
Difficulties with Shalom's contention that outcome would be unaffected
The first difficulty is that the Tribunal's finding[46] was made without regard to the temporary limb (it having assumed that limb was not relevant). The Tribunal did not consider its application in that context. Nor did it consider what (if any) impact the inclusion of the word 'temporary' may have on its application. The finding cannot be assumed to extend to the temporary limb.
[46] Reasons [49].
The second difficulty is that it fails to properly take into account that 'residential building' is a defined term in LPS 17. Shalom submits that the presence of the word 'residential' in the defined term 'is just as significant as it being in the text of the definition'.[47] However, it is the words of the definition that matter. As stated by the High Court in Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Co Inc,[48] '[i]t would be quite circular to construe the words of a definition by reference to the term defined'. Applying that authority, the use of the word 'residential' in the term to be defined 'does not colour the meaning to be given to the definition which follows it'.[49] The principle was considered in Esso Australia Resources Pty Ltd v Commissioner of Taxation,[50] where the court considered it may be possible in the case of ambiguity to have regard to the term defined. However, there is not in this case ambiguity in that sense.
[47] ts 46.
[48] Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Co Inc [1994] HCA 54; (1994) 181 CLR 404, 419.
[49] Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Co Inc (419).
[50] Esso Australia Resources Pty Ltd v Commissioner of Taxation [2011] FCAFC 154; (2011) 199 FCR 226 [101] ‑ [107].
Third, applying the purposive approach and general principles of construction, I do not consider there are grounds to imply words. It cannot be said that there is ambiguity or that something has obviously been overlooked by inadvertence by the draftsperson. The definition fits with that of 'dwelling', as set out above. It is by no means clear what words might have been inserted by the draftsperson had some omission been identified: that would require speculation. It could be said that there is some tension in applying definitions from the RDC (drafted for the purpose of design) to the purpose of 'use' under LPS 17, but that is a choice made by the draftsperson and the definition remains workable.
Fourth, although the meaning of the term 'residential building' has been considered in many authorities, its meaning is addressed (relevantly):
(a)in the absence of a prescribed definition; or
(b)where the term is defined but in different terms and where examples are included within the body of the definition that provide the foundation for some limitation on its meaning.
The cases are not authority for the broader proposition that such words of qualification are to be inferred even where 'residential building' is defined.
In order to properly address this fourth issue with Shalom's contention it is necessary to consider some of the authorities.
Authorities
In Derring Lane the question was whether a motel came within the meaning of 'residential building'. The term 'residential building' was not defined. The court considered dictionary definitions and prior authorities in coming to the view, as referred to by the Tribunal, that:[51]
[T]he 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.
[51] Derring Lane (135).
By reference to dictionary definitions of 'motel' as accommodating travellers and strangers and catering mostly for motorists, the court considered a motel was far from the concept of a residential building.
In VBI Properties, the subject property, 'Enfield House,' had been used as a boarding house for many years. Its use was frequently referred to as a 'boarding house'. After ownership changed, it was renovated, bed numbers increased and it was used and marketed as a place for travellers and backpackers.[52]
[52] VBI Properties [112], [166] ‑ [167]; see also VBI Properties Pty Ltd v Victorian Civil and Administrative Tribunal [2001] VSC 22.
In issue was whether the use by the new owners fell within an existing use right (which would have been preserved) or was a different use.[53]
[53] VBI Properties [148].
'Residential building' was defined as:[54]
Land used to accommodate persons, but does not include camping and caravan park, corrective institution, dependent person's unit, dwelling group accommodation, host farm or residential village.
The definition was expressed to include both boarding house and backpackers lodge.[55]
[54] VBI Properties [69].
[55] VBI Properties [70]; VBI Properties v Victorian Civil and Administrative Tribunal [12].
'Boarding house' was not defined in the planning instrument. The Tribunal defined 'boarding house' as 'premises which do not comprise self‑contained facilities, generally used to house persons as their settled or usual abode, or at least their permanent place of abode for the time being'.[56] In so doing, it had regard to Derring Lane.
[56] VBI Properties [164].
The Tribunal found that the existing use was as a boarding house. The use of the premises after the change of ownership was as budget tourist accommodation, colloquially a backpackers hostel. As this comprised use for a different purpose to that of 'boarding house', the use was not preserved.[57]
[57] VBI Properties [169].
It must be remembered that the Tribunal in VBI Properties was concerned with the meaning of 'boarding house' and it had regard to Derring Lane in that context. It did not suggest the Derring Lane definition of 'residential building' was to be implied into the prescribed definition of 'residential building'. Indeed, the broad ambit of the prescribed definition (including, for example, a backpackers lodge) tells against such implication.
The obiter comment quoted by the Tribunal does not advance matters.[58] According to VBI Properties, the comment was made 'in passing' by two previous decision makers dealing with Enfield House. They apparently queried whether 'residential building' was the correct use at that prior time.[59] It is not known whether they had regard to the applicable definition. Further, shortly afterwards another decision maker apparently directed a permit for Enfield House's use as 'residential building (youth hostel)'.[60]
[58] Reasons [34] (and set out above).
[59] VBI Properties [157] ‑ [158].
[60] VBI Properties [160].
In GrainCorp, the question for the court was whether a proposed fly‑in fly‑out accommodation facility for mine workers fell within the meaning of 'residential building' and was therefore a prohibited use.
The term 'residential building' was not defined in the relevant planning provisions. In construing the prohibition, Ward JA considered the zoning objectives (finding them to provide little support one way or the other), dictionary definitions of 'residential', and other authorities in which a similar term had been considered.
Whilst accepting that dictionary definitions should be used with caution,[61] her Honour drew from them that:[62]
[T]he appellation 'residential' may in some contexts connote a degree of permanence but can also connote an habitual or usual abode, or even a place where one lives for a time or while performing a particular purpose or function, in which respect it would not be inapt to refer to the occupation of workers during the period that they are fulfilling work functions at the mines.
[61] GrainCorp [75].
[62] GrainCorp [83].
Her Honour considered in particular North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd.[63] The issue in North Sydney was whether use of a number of units used as serviced apartments was within the term 'residential flat building'.
[63] North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd (1990) 21 NSWLR 532; (1990) 71 LGRA 432.
This is an example where 'residential building' was defined, although the definition itself includes certain types of building. The definition is:[64]
'Residential building' means a building, other than a dwelling-house, designed for use for human habitation together with such outbuildings as are ordinarily used therewith, a residential flat building, a hostel, an hotel designed primarily for residential purposes and a residential club, but does not include any building mentioned, whether by inclusion or exclusion, in the definitions of 'places of instruction' and 'institution'.
[64] North Sydney (536).
Mahoney JA concluded that:[65]
The definition of 'residential building' requires nothing more than use for human habitation. However, it includes within its terms descriptions of buildings or usages involving different kinds of human habitation. The kind of human habitation required to satisfy each of these will vary according to the nature of each of them and will, inter alia, require different degrees of permanency. Thus, a residential hotel may have a smaller degree of permanence than a residential club or hostel. It is, I think, not inconsistent with the thrust of the definition that there should be within it a kind of category of residential building which envisages a significant degree of permanency of habitation or occupancy.
The description of a flat as a 'dwelling' or a 'domicile' carries with it the notion of that degree of permanency.
[65] North Sydney (537 ‑ 538) (Priestly & Handley JA agreeing).
In GrainCorp, Ward JA cautioned against assuming that North Sydney would stand for a proposition that to be within the meaning of 'residential building' it was necessary for there to be a high degree of permanency, noting that the court was there construing a particular type of building (residential flat building) and noting that other decisions turned on the construction of different provisions.[66]
[66] GrainCorp [94], [100].
Having considered carefully Mahoney JA's reasons and other authorities involving different instruments, her Honour concluded that:[67]
I accept that on one connotation of the adjective 'residential', the composite term 'residential buildings' could be read as meaning more than simply structures used for the purposes of human habitation; namely, that it carries with it the notion of a degree of permanence or settled or habitual abode. However, I also consider that on the ordinary meaning of 'residential' it is sufficient that structures are used as the usual abode of people or as their abode 'for a time' (in the sense of more than a fleeting stay) or even, in some of the older usages of the expression 'in residence', for the purpose of abode for a stated function.
[67] GrainCorp [101].
Her Honour then approached the characterisation with respect to the accommodation village on the basis that it would be prohibited if its use was as a settled or habitual abode. Her Honour did not consider the transient nature of each visit by a worker, nor the fact that they may have homes elsewhere, were such as to deny that the facilities performed a residential function.
Her Honour found that the focus should be on the use made of the buildings rather than the individual occupation of rooms by workers. To the extent 'residential building' connotes a degree of permanence or settled abode, then the intended facility fulfilled such purpose, taking into account that the facility was to[68]
provide accommodation and living facilities for mine workers for considerable periods of time, in aggregate, over their working life at the mine (however long or short that may be).
[68] GrainCorp [122] ‑ [123].
In Byrne v The Owners of Ceresa River Apartments Strata Plan 55597,[69] the proper construction of a by‑law relating to use of a strata lot was in issue. In particular, the Court of Appeal considered the meaning of the undefined terms 'resident' as used in the Strata Titles Act 1985 (WA) and 'residence' and 'residential' as used in the by‑law. The meaning was considered in the particular and discrete context of obligations and rights of proprietors under the Strata Titles Act and relevant by‑laws. The Court of Appeal held that in such context, the word 'resident' in the Strata Titles Act implies some degree of continuity and 'would include, at least, someone who is making the lot his or her settled or usual abode'.[70] As a matter of construction of the by‑law, a requirement that a proprietor of a lot may only use his lot as a residence means that 'a lot may only be occupied by persons who use the lot as their settled or usual abode'.[71] Whether someone is occupying a lot for use as their settled or usual abode will, generally speaking, be a question of fact.[72] Use as a settled or usual abode 'will encompass the ordinary incidents of living'.[73] The Court of Appeal considered Ward JA's approach in GrainCorp in coming to its view.
WASAT decisions relied upon by Tribunal
[69] Byrne v The Owners of Ceresa River Apartments Strata Plan 55597 [2017] WASCA 104 (Byrne).
[70] Byrne [111].
[71] Byrne [151].
[72] Byrne [151].
[73] Byrne [155].
The Tribunal drew support for its view as to the application of Derring Lane from other cases the Tribunal (differently constituted) had decided. The Tribunal noted[74] that Derring Lane had been considered or applied in Hope and City of Joondalup[75] and in Cavill and Mulholland.[76]
[74] Reasons [28].
[75] Hope and City of Joondalup [2007] WASAT 8.
[76] Cavill and Mulholland [2007] WASAT 158. The tribunal also referred to Owners of Ceresa River Apartments Strata Plan 55597 and Haines [2015] WASAT 72, but that is the decision the subject of Byrne.
In Hope and City of Joondalup, the Tribunal was concerned with the meaning of 'residential development' where it was undefined.[77] In Cavill, the Tribunal was also concerned with an undefined term, being 'multiple residential dwellings'. One can well understand that cases such as Derring Lane (and those subsequent to it) may be of assistance where, in contrast to this case, the relevant term is not defined.
Conclusion on authorities
[77] Hope and City of Joondalup [19], [25].
The authorities establish that where they are not otherwise defined, the terms 'residential' or 'residence' generally refer to one's usual or settled abode. That might be 'for the time being' or 'for a time'. It need not be the person's only residence.[78] The concept of 'residential' is a broad one.[79]
[78] GrainCorp [112]; see also Burwood Municipal Council v Aboriginal Hostels Ltd (1979) 39 LGRA 150, 153.
[79] GrainCorp [112].
Where the term is defined, the same meaning may well be incorporated where terms used in the definition import such meaning (such as 'flat' in North Sydney; 'residence' in Marana Holdings Pty Ltd v Commissioner of Taxation[80]) or it is otherwise apparent from the planning framework that such result must follow.
[80] Marana Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 307; (2004) 141 FCR 299.
In short, the authorities do not establish that where the use of 'residential building' is defined (and there are no words of importation), its definition in any event incorporates a term that there be a purpose that the building be used as a settled or usual place of abode, or that such term should be implied.
As to LPS 17
In the case of LPS 17:
(a)temporary habitation is expressly provided for in the definition. Therefore, any focus on 'permanence' in other cases or instruments is not to the point. Lack of permanence does not deny temporary use, and so of itself does not take use outside 'residential building';
(b)the LPS 17 definition of 'residential building' does not include examples that use words that import such meaning. There is no inclusion of words such as 'residence' or 'dwelling' or 'domicile' or the like within the definition;
(c)there is no basis to imply the term for which Shalom contends.
Finally, I note that despite the lack of inclusions, there are exclusions in the definition. To the extent that based on those exclusions the Tribunal was suggesting that a building should not be considered residential if its patrons return to their homes,[81] that suggestion does not accord due regard to the temporary habitation permitted by the temporary limb, the potential for persons to have two residences, and the example provided by GrainCorp that use for accommodation of fly‑in fly‑out workers (who may have homes to return to between shifts) comprised a residential use.
[81] Reasons [30].
Accordingly, I do not consider that the result below necessarily would have been the same had the temporary limb been given consideration. The result would depend upon the proper consideration and application of the definition.
Determination on ground 2
It follows that I consider that it is in the interests of justice that leave be granted. I would grant leave and allow the appeal with respect to ground 2. The Tribunal failed to properly consider the temporary limb and misconstrued the meaning of 'residential building' in LPS 17. As a result, the Tribunal failed to determine and consider all issues relevant to the consideration of that use. The matter should be remitted to the Tribunal for proper application of the relevant definition, including the consideration of the elements of the definition such as 'human habitation'.
I decline to grant leave on ground 1 but repeat that the relevant submissions have in any event been considered for the purpose of ground 2.
Notice of contention
Having allowed the appeal with respect to ground 2, it is clear that the original finding of the Tribunal cannot be sustained solely on the basis of the notice of contention. The notice of contention gives rise to the question of factual characterisation in circumstances where the Tribunal did not make such factual characterisation. It is not the function or within the powers of this court to resolve such factual matters. Accordingly, the notice of contention is dismissed.
Cross‑appeal grounds 1 and 2
'Community purpose' is defined
Again, the starting point is that the term is defined:
'Community purpose' means the use of premises designed or adapted primarily for the provision of educational, social or recreational facilities or services by organisations involved in activities for community benefit.
The Tribunal referred to various sources in determining that in addition to the meaning prescribed by the defined term, there was an 'inherent requirement of sufficient localism' in the meaning of 'community purpose'.[82]
[82] Reasons [53] ‑ [61].
In Penola and District Ratepayers' and Residents' Association Inc v Wattle Range Council,[83] the court construed the terms of a trust, which declared that the council held a parcel of land known as the Penola Commonage Land:[84]
[F]or the public use of the residents of the former District Council of Penola ... for sporting, agricultural, educational, recreational, community or like purposes.
[83] Penola and District Ratepayers' and Residents' Association Inc v Wattle Range Council [2011] SASCFC 62; (2011) 110 SASR 110.
[84] Penola [3].
The words 'community or like purposes' were not defined. The inclusion of the words, 'residents of the former District Council' flavours the meaning in a manner such that any analogy with Penola is not useful.
In Attorney General (NT) v Hand,[85] the court was concerned with the definition of 'community purpose' in s 3 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) in these terms:
'community purpose' means a purpose that is calculated to benefit primarily the members of a particular community or group.
[85] Attorney General (NT) v Hand [1991] HCA 17; (1991) 172 CLR 185.
The reference to 'community' in the context of land rights legislation for indigenous groups is not useful in the context of town panning law. In any event, use of the word 'primarily' permits an interpretation that takes into account benefit beyond the immediate members of any particular locality.[86]
[86] The Tribunal's reference to other legislation at [54] ‑ [55] of its Reasons does not assist, not only because the relevant defined terms include in their definitions words such as 'community purpose' or 'purpose of a community group', but also because no examples of their application are referred to.
In Herdsman Neighbourhood Centre and Town of Cambridge[87] the relevant centre offered a not for profit multicultural family support service. It provides an example where the parties agreed the use was 'community purpose' and there was, at least as to some activities, clearly a local connection. However, it does not assist in a consideration of whether such local connection was required by the definition or the confines of such locality. That issue did not arise.
[87] Herdsman Neighbourhood Centre and Town of Cambridge [2006] WASAT 314.
A more useful authority is Urquhartv City of Mount Gambier.[88] The question in Urquhart was the meaning of an objective relating to a residential zoning drafted as follows:[89]
A zone primarily for detached buildings at low densities on individual allotments. Community facilities and local open spaces may also be located in this zone.
[88] Urquhartv City of Mount Gambier (1995) 66 SASR 26; (1995) 89 LGERA 57.
[89] Urquhart (26).
'Community facilities' was not defined. Whilst the planning regime and instruments are not directly analogous, and the term under consideration was not identical, the reasons of both the primary judge (Debelle J) and the majority on appeal (Cox J, Perry J agreeing) are useful. Justice Debelle considered that there was nothing in the relevant development plan that restricted the connotation of the word 'community' to a geographical community, and that the word 'community' is a reference to a community of interest, be that of a sporting, religious, recreational, educational or other nature. He considered it was not necessary that those community facilities be limited for use by those who live within the immediate neighbourhood or local area.[90]
[90] Urquhart (31).
On appeal, Cox J said:[91]
In my opinion, the Commissioner interpreted the expression 'community facilities' too narrowly. There is an attractive logic in identifying the 'community' in this expression with the community or neighbourhood that is practically delimited by the zone in which the facility is to be constructed, but I do not think that the terms of the Development Plan require this and it would give the word 'community' a connotation that is too precisely geographical, in my opinion, in this context. It would also tend to create a rigid and stultifying, if not sometimes unworkable, regime. A kindergarten or a scout hall is an obvious community facility, in the ordinary sense of that expression, and could be expected to draw most of its support from the immediate neighbourhood, but such a facility might not be economically or organizationally viable if built on a sufficiently small scale to serve no more than the zone or other immediate area in which it is established. The draftsman, I apprehend, has acknowledged this by not qualifying 'community facilities' by the word 'local' as he has in the case of 'open spaces'. Of course, if a community facility is built on such a large scale that it seriously detracts from the amenity of the area then its chances of securing planning consent will be significantly lessened, but that is another matter.
I would also interpret the subject matter of 'community facilities' in a fairly liberal way. Obviously the proposed meeting hall would not be available for everyone, but there is a question of usage and degree involved here and I should regard any church building or the like as a community facility in this context.
I am thus in substantial agreement with Debelle J from whose reasons this appeal is brought. I might add that, even if one were to interpret the Objective and Principle as restricted to local community facilities, it is by no means obvious that the meeting hall would fail to meet that test. The evidence shows that it is a tenet of the Brethren that those worshipping at one meeting hall should visit another on a regular fortnightly basis - hence the need for a building that will hold double the number of local adherents. In this unusual situation it might well be argued that the 'local' character of the facility is not diminished by the circumstance that it will be used by Brethren who come from outside the immediate locality as well, for nothing less than that could meet the requirements of the local community of people as expressed in the form of a meeting hall for the local Brethren. But it is not necessary to decide that now.
[91] Urquhart (27 ‑ 28).
I acknowledge that there are differences in the applicable planning regimes and Urquhart was not concerned with a defined term, but the reasoning tells against too narrow a view of 'community'.
Applying the statutory construction principles referred to above, I do not consider it is necessary to imply words to the effect that a relevant purpose must be related to members of a particular locality.
It is not a necessary term. The potential for those who reside within the local geographical area to benefit from the 'community purpose' use of premises ought not be circumscribed by the potential for others with some common need or interest but residing outside the location to also benefit from it.
Further, as noted in Urquhart, the viability of a 'community purpose' may well be undermined if a narrow view of the term is implied, to the detriment of those within the geographical area who may miss out altogether as a result.
It is necessary to return to the elements of the definition. The City's submission that the proper approach to the definition is to consider its particular terms is clearly correct. The parties agreed and proceeded on the basis (leaving aside the issue of locality) that the terms required that the premises are designed or adapted primarily for the 'use'; the use is the provision of educational, social or recreational facilities or services; that such facilities or services were to be provided by organisations involved in activities for community benefit.[92]
[92] Appellant's submissions in response filed 24 October 2016 [16]; ts 65.
The Tribunal did not consider those terms. It did not consider the requirement that the organisation be involved in activities for 'community benefit' and the extent to which such benefit is met in the particular factual circumstances of Shalom and the prescribed requirements of admission to and participation in the programme it conducts. Whilst the words 'community benefit' are not defined, for the reasons set out above I would not ascribe to them a meaning so narrow that the potential for those outside a particular local area to benefit from the activities would deny a 'community benefit'.
Two other submissions made by the City remain to be considered. First, it was said that failure to imply the term suggested by the Tribunal means that 'community purpose' is the equivalent of 'public purpose', and those words could have been inserted by the draftsperson. But equally, if 'community purpose' is said to mean a purpose that benefits only those who have a particular geographic link to a locality, then such words could have been inserted. There is little value in surmising as to how the definition could have been differently drafted.
The City also referred to the 'aims of the Scheme', the only other part of LPS 17 where the word 'community' relevantly appears. It appears as follows:[93]
[93] LPS 17 cl 1.6.
The aims of the Scheme are to -
(a)Provide for a range of compatible housing and associated development, in neighbourhoods with a community identity and high levels of safety and amenity.
…
(c)Encourage development that will strengthen the economic base of the District and provide convenient and efficiently located employment for the community.
…
(f)Promote the health, safety, convenience and the economic and general welfare of the community, and to ensure the use and development of land does not result in significant adverse impacts on the physical and social environment.
The City says that in context, 'community' must mean the Swan community, being the persons in that district, and not 'everyone in the state'.[94]
[94] ts 92 ‑ 93.
It is not the case that words appearing in different places within legislation must bear the same meaning. Any presumption to that effect is not of much weight and yields to the context.[95] The word 'community' is used in a very general sense in the aims, aims being (not unsurprisingly) drafted at a high level.[96]
[95] McGraw-Hinds (Aust) Pty Ltd v Smith (1978) 144 CLR 633, 643; Abbey Beach Resort Management Ltd v Water Corporation Ltd [2007] WASC 268 [39].
[96] Harburg Investments v Brisbane City Council [31] (and cases cited): 'It is seldom appropriate in matters such as these to rely on any specific statement of intent or of aims or objectives in the planning documents as determinative.'
In the context of 'community purpose', it is used first as part of the defined term, and second in providing that the relevant organisation is involved in activities for 'community benefit'. The scope of 'community purpose' is determined by its definition. In the context of 'community benefit', 'community' is not to be construed narrowly for the reasons above. That does not mean it necessarily accords with 'public'. The general meaning of 'community' still invokes a community of interest:[97] that interest may well include connection to a particular locality. However, in my view where used in the expression 'community benefit,' it is not limited to a group of persons with a community of interest who must reside in or be associated with a particular locality. The manner in which 'community' is used in the 'aims' does not compel a contrary view.
[97] Urquhart (31) (Debelle J, upheld on appeal).
Accordingly, the Tribunal applied a locality test which was not one of the necessary elements of the definition and failed to consider and apply the express elements of the definition.
I would grant leave to appeal with respect to grounds 1 and 2 of the cross‑appeal and allow the cross‑appeal.
As Shalom accepted, a proper application of the definition requires the consideration and application of facts and such role is to be undertaken by the Tribunal. To the extent they arise, questions such as 'best fit' that were raised before me also fall to be determined by the Tribunal.
Disposition of appeal
The appropriate course is for the decision of the Tribunal to be set aside, and the matter to be remitted to the Tribunal, differently constituted, in order for the issues to be considered and determined taking into account these reasons.[98] Shalom contended that leave to appeal should only be granted on terms as to costs. In the circumstances, I will hear the parties further as to costs taking into account the matters referred to in s 105(12) of the SAT Act.
[98] Centex Australasia Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 79 [154] ‑ [155].
SCHEDULE
Agreed Facts (some names have been anonymised)
Physical structures and layout
1.The principal building on the subject property is a rectangular building constructed of brick and tile. It is more particularly described as follows:
(a)it is divided by walls and storeys into five separate living units or units designed as living units. There are no doors or openings that enable access between those separate living units;
(b)each of the living units has its own lockable entry door;
(c)three of the living units are side-by-side, with their entry doors, at ground level, facing the street frontage:
(i)they each have a high-ceiling front lounge, which connects by stairs to a mezzanine level;
(ii)each mezzanine level has a kitchen and dining area;
(iii)the dining areas open on to a common balcony that extends for the length of the rear of the building;
(A)unit 1 has: three bedrooms on the ground floor, and two bedrooms on the mezzanine level;
(B)unit 2 has two bedrooms on the ground floor, and one bedroom on the mezzanine level; and
(C)unit 3 has three bedrooms on the ground floor and two bedrooms on the mezzanine level.
(d)the block slopes from front to rear enabling carports and living areas to exist beneath the upper living areas;
(e)the fourth and fifth units have their entry doors facing the rear of the property and they are at each end of the rectangular building;
(f)the fourth living unit at the East end of the building, identified as 'Unit 1a', comprises:
(i)a kitchen currently used as an office;
(ii)a dining or activity area currently used as a storage area for food and consumables;
(iii)a bedroom currently used as a store room, but also includes a bed;
(iv)a storage area off the bedroom currently used as a clothing store made available to program participants if they require it;
(v)a toilet and bathroom also used a store room; and
(vi)a carport;
(g)the fifth of the five residential units at the west end of the building, identified as 'Unit 3a', akin to a 'granny flat', which is currently operating as a 'live in leader's quarters' includes:
(i)one bedroom;
(ii)a kitchen;
(iii)a bathroom with a toilet; and
(iv)a carport.
2.In the centre of the building between the carports is a large laundry with a separate toilet. The laundry is currently equipped with several washing machines used for washing the participants' clothing.
3.The setbacks of the building are as follows:
(a)from Park Street: 20 metres;
(b)from the Western boundary: 28 metres;
(c)from the Eastern boundary: 20 metres.
4.There are lawns and gardens within the immediate curtilage of the main building.
5.The property does not bear any signage.
6.There are falls in the levels from the street to the rear of the subject land. Rearward of the house there is a retaining wall that accommodates the falling levels.
7.There is a brick fence and locked gate at the front of the property, with an intercom and a system for opening the gate remotely. The brick fence extends across the property along Park Street and around the corner of Murray Street to a second driveway entry on Murray Street. The other boundaries are fenced with standard rural fencing.
8.There is vehicular entry to the subject land from Murray Road (Eastern) boundary via a driveway to the curtilage of the main building.
9.The subject property has nine available car bays for the on-site staff and 'Stage 3' resident-participants (see further below, under 'Operations'), and there is ample area for additional parking.
10.Rearward of the main building and its curtilage/retaining wall, the balance of the property is cleared paddocks.
11.Other buildings on the subject land are:
a)a single shed set up as a stable, currently not in use; and
b)an 8 m by 8 m tin shed, which is set back 150 m from the rear of the house.
12.The property has two large belowground water tanks at the rear, and at either end of the rectangular building.
Operations and tenure
13.'Shalom House' accommodates up to 30 men in a live-in arrangement.
14.The proprietor of the land is Swan Valley (WA) Pty Ltd.
15.Tenancy Agreements for Units 1, 1a and 2 were signed on 18 November 2014, with Tenancy Agreements for Units 3 and 3a being signed on 10 February 2015. In both cases, tenancy commenced immediately. The tenancies were initially entered into between the registered proprietor and Mr Peter Lyndon-James, the Chief Executive Officer of Shalom Group. Mr Lyndon-James transferred the tenancies to the West Australian Shalom Group Inc. (Shalom Group).
16.Subsequently, the subject land has become known as 'Shalom House'. Features of the Shalom House program include:
(a)men are only accepted as participants if they:
(i)have been suffering from a debilitating life‑controlling issue, such as (but not limited to) substance abuse, institutionalisation, estrangement from key relationships, emotional trauma and other psychological inflictions such as fear, depression and anxiety;
(ii)personally contact Shalom Group for admittance;
(iii)express a genuine commitment to tum their lives around;
(iv)commit to working 5 days a week (Monday to Friday) for the duration of their participation in the programme: this includes volunteer work for various charities; external work for employers who can provide a safe working environment (a working environment that reinforces the lessons and values taught at Shalom House); and domestic tasks that include the upkeep of the House;
(v)commit to actively participate in the comprehensive three stage restoration program, which involves a combination of full time work, therapy through structured counselling, spiritual guidance and decision-making training;
(vi)commit to the rules of Shalom House and commit to living by the Christian ethos of Shalom House; and
(vii)are interviewed and approved by the Chief Executive Officer of Shalom House, who has a discretion to determine the veracity of the participant's commitment to subsections (iii) - (v) above;
(b)participants pay Shalom House $300 per week drawn from their Centrelink entitlement or personal money, which covers all aspects of the program including accommodation;
(c) upon arrival, if an incoming resident-participant lacks suitable clothing, Shalom House provides clothing that is of a generic style and with suitable branding to avoid association with the participant's former lifestyle and addictions;
(d)Shalom House supplies all toiletries throughout the resident-participant's duration in the program;
(e)the current living arrangements for the granny flat are as described in (g) below. The following points relate to the three side-by-side residential units:
(i)each resident-participant is assigned a bedroom that is usually shared with another participant for the purpose of teaching cooperation and promoting a family environment;
(ii)there is a mix of resident-participants within each residential unit throughout the various stages of the program, from new arrivals to those close to leaving the program and re-entering mainstream society;
(iii)a roster of domestic tasks is kept for each residential unit and each participant has household obligations each day;
(iv)participants in each residential unit are expected to keep their own bedroom and, jointly, to keep all living areas clean and orderly;
(v)subject to the matters described in (z) below, the participants also cook meals for the 'household' represented by that residential unit;
(f)the Chief Executive Officer of Shalom House does not reside at the subject land, but oversight of Shalom House is his full-time occupation. Currently, Shalom House has three full time staff members and five part-time staff members as follows:
Name
Position
Status
Shalom Resident
G
House coordinator
Full time
No
H
Admin Coordinator
Full time
No
H
Works coordinator
Full time
Yes
Ms S
Admin assistant
Part time
No
NH
Works officer
Part time
Yes
Mr S
Discipleship coordinator
Part time
No
(g)the fourth residential living unit, akin to a 'granny flat', is currently occupied by two Shalom Graduates who have completed 'Stage 3' of the program as is described below, and who are given responsibility for oversight of new resident-participants in Stages 1 and 2 as the final part of the program prior to leaving the program and reintegrating into society. One of the Shalom Graduates works full time completely independent of Shalom House and is currently searching for other residential options. The other Shalom Graduate studies part time at Bible College and works two days per week in the Shalom Program as a Works Officer;
(h)there is no free-to-air television on the property. There are televisions with a connection to a Christian television station, and PG-rated DVDs are also available;
(i)drinking, smoking and alcohol are not permitted on the property;
(j)if a participant requires detox at the beginning of the program then:
(i)this occurs on-site;
(ii)it occurs without the aid of any medications;
(iii)there is not necessarily any attendance by a medical practitioner or psychiatrist during the detox, unless this happens to coincide with weekly visits of a doctor and/or psychiatrist as mentioned in (k) and (l) below;
(iv)other resident-participants provide informal untrained support through the detox process; and
(v)the resident-participant undertaking detox is not placed in any special facility on-site, but recovers within the household of one of the residential units;
(k)upon entry to the program, all residents are taken to see Dr H at the Craigie Medical Centre for an initial consultation, examination, blood and urine analysis. A general practitioner attends on an approximately weekly basis to provide any resident-participant with medical assistance on an 'as needs' basis, or periodically for ongoing medical treatment as determined by the doctor;
(l)within the first two weeks of entry to the program, all residents receive a consultation from a volunteer psychiatrist. Depending on the outcome of that consultation, there may be a need for ongoing psychiatric support, which is determined by the psychiatrist and the Chief Executive Officer. A psychiatrist attends on an approximately weekly basis to consult with those participants;
(m)the Pastoral Care Coordinator attends the House twice weekly, being on:
(i)Tuesdays between approximately 8 am and 9:45 pm; and
(ii) Fridays between 8 am and 4 pm;
(n)as outlined in Shalom House's Residential Contract, it is mandatory for each resident to see both a medical practitioner and a psychiatrist on entry to the Program. The resident is seen by the medical practitioner at his Medical Centre, where the program participant is bulk‑billed for his visits. The medical practitioner also provides an after-hours service in the event that issues or questions arise. The psychiatrist performs the consultations at Shalom House free of charge. There has been no change in either service provider since the establishment of Shalom House;
(o)Shalom House stringently guides each participant through the program's three stages. The overall duration of the program, and the duration of each stage, is flexible and tailored to each individual participant. However, the overall program typically lasts for approximately 12 months. Further details are as follows:
(i)Stage 1: approximately three months, except as described elsewhere. There is also no leaving the property unless with an approved person. The participants work full time doing volunteer work either within the property or for various charitable organisations, as arranged by Shalom House. Upon arrival, if a participant requires detox, this occurs on-site at the beginning of Stage I. Additionally, there is limited access to TV and media broadcasts throughout the programme's three stages (detailed above). In addition, there is a limit on phone use throughout the duration of the program. During this stage, resident-participants are introduced and acclimate to the lifestyle that the Shalom House program demands;
(ii)Stage 2: the Chief Executive Officer of Shalom House works up a Resident Overview Plan with the individual resident-participant. This plan is devised during the final month of stage 1. During stage 2, participants are focused on improving their work skills, vocational skills and life skills. Additionally, the participants work two days a week, progressing up to three or a maximum of four days per week. They perform paid work with an employer, who:
(A)partners with Shalom House and its objectives;
(B)understands something about the background of the individual participant;
(C)is prepared to take him into employment;
(D)is assessed as providing an environment free of negative influences (Partner Employer);
While the participants perform paid work for Partner Employers, Shalom House ensures that the revenue generated is used to fulfil the participants' Resident Overview Plans, which includes paying off any accrued debts, fines or simply helping the participants to qualify for their driver's licences or to acquire tools for future use in their chosen vocational skill;
Apart from employment, and except as elsewhere appears as an agree fact, the participants do not leave the property except with an approved person;
(iii)Stage 3: the participant performs 1 - 5 days per week paid work with a Partner Employer. They are also allowed to use their mobile phones, as well as the freedom to come and go at Shalom House as they see fit, including by means of their own vehicle if they have one, subject to a curfew of 11 pm;
At any point during the three stages, a participant may have his program terminated for failing to comply with the rules and responsibilities imposed by Shalom House;
Shalom House provides a bus service that takes Stage 1 and Stage 2 resident-participants to their daily work places and returns them to the subject property;
(p)the Resident Overview Plan referred to in (o)(ii) involves working through, with each resident-participant, around the last month of his Stage 1, the key life issues facing them, their hopes and aims, a set of objectives, and a plan of action for realising them. Examples include:
(i)steps to progressively restore estranged relationships, setting aside restraining orders;
(ii)addressing debts;
(iii)acquitting any community service orders;
(iv)saving money to acquire items required for a business; or
(v)assisting the participant on a path to training, qualifications, employment, their own business, etc;
(q)from the income earned from employment with a Partner Employee, participants are required to pay unpaid fines and debts, and they are also encouraged to purchase the essentials to realise their action plan. This includes, but is not limited to, a car or tools for a business etc;
(r)every weeknight, the participants attend a mandatory discipleship session where volunteers read and discuss biblical teachings and pray with each other;
(s)each Friday night, the Shalom House bus delivers all the participants to a church service at Without Walls, a Pentecostal Church in North Perth to participate in a Friday night service;
(t)each Saturday morning the resident-participants meet with the house leaders to discuss the running of the house and resolve any issues that have arisen in the previous week;
(u)on Saturdays the resident-participants get to participate in planned and supervised recreational activities that may include bus trips to the beach or other venues;
(v)each Saturday, the Shalom House bus delivers all the participants to and collects them from a church service at Riverview Church, a large church in Victoria Park. Riverview Church also facilitates a time before and after the service for the participants to meet and spend time with family and friends as there are strict restrictions on family and friends visiting the property;
(w)[unnecessary to reproduce, as a duplicate of (v) above];
(x)every Sunday, the Shalom House bus delivers the participants to a different church within the Perth metropolitan area that has been chosen during the prior week, to give them a broad experience of the various different styles of Christian churches;
(y)on-site visits to Shalom House resident-participants are kept to a minimum as the Shalom Group attempts to confine family visits to 'family nights', which are held every Saturday night at a local Church venue. The Chief Executive Officer determines whether any additional family visits are necessary for the purpose of relational restoration;
(z)Shalom House provides all the food, which the resident‑participants cook/prepare in their residential units. A Shalom House staff member, G, performs the shopping for the majority of household items, including food, cleaning items, and personal hygiene items. G's job is to oversee the running and stock of the three Units. Other individual personal items are acquired by the residents themselves on an 'as-needs' basis. Residents are given the opportunity to purchase such items each Sunday when they are taken for a short supervised shopping trip;
(aa)every morning, all resident-participants assemble for breakfast in the residential unit that has the largest dining area. This includes some structured fellowship;
(bb)Shalom House also arranges for teams of participants to attend and undertake supervised gardening and other charitable work for people in need in the broader community.
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