Mackenzie v Warringah Council - [2002] NSWLEC 246

Reported Decision: (2003) 124 LGERA 208

Land and Environment Court

of New South Wales

CITATION: Mackenzie v Warringah Council [2002] NSWLEC 246

PARTIES:
APPLICANT
Luke Mackenzie
RESPONDENT
Warringah Council

FILE NUMBER(S): (1)0387 of 2002

CORAM: Cowdroy J

KEY ISSUES: Development Application :- categorisation of use - whether development of boarding facility constitutes housing or a business

LEGISLATION CITED: Warringah Local Environmental Plan 2000

CASES CITED: Ashfield Municipal Council v Australian College of Physical Education Ltd (1992) 76 LGRA 151;
Church of England Children's Homes Burwood v Burwood Municipal Council (1979-81) 43 LGRA 165;
Hope v Bathurst City Council (1978) 38 LGRA 1;
North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd (1992) 21 NSWLR 532;
Peter Walter Carmont v Ballina Shire Council (Pearlman J, NSWLEC, 7 August 1998, unreported) ;
South Sydney Municipal Council v James & Anor (1977) 35 LGRA 432 (CA);
Wyong Shire Council v Ardi Pty Ltd (2000) 112 LGERA 85

DATES OF HEARING: 19/12/2002

DATE OF JUDGMENT:
02/05/2003

LEGAL REPRESENTATIVES:

APPLICANT
Mr I Hemmings (Barrister)
SOLICITORS
n/a
RESPONDENT
Mr J Maston (Barrister)
SOLICITORS
Wilshire Webb

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

(1)0387 of 2002

Cowdroy J

5 February 2003

LUKE MACKENZIE

Applicant

WARRINGAH COUNCIL

Respondent

Judgment

1 The Court is required to determine a question of law which has arisen in respect of the applicant’s development of a new boarding house at 789 Pittwater Road, Dee Why.

2 By development application No. 2001/1550 dated 25 October 2001 the applicant sought consent of the respondent (“the council”) for the demolition of an existing dwelling and the erection of a new building comprising 23 (now 22) rooms (“the development”). At ground floor level the development would contain a communal kitchen and dining room for shared use by the boarders and a resident manager. Twelve bedrooms are located on the same level. Each room is provided with an ensuite bathroom. The remaining bedrooms are proposed to be located on the first floor, each being equipped with its own ensuite bathroom. A car park, laundry and storage areas are located on the lower ground floor.

3 It is proposed that each bedroom would be occupied and used separately and it is an agreed fact that none of the bedrooms are capable of being occupied or used as a separate domicile. A plan known as the Boarding House Management Plan (“the management plan”) would regulate the tenure of the occupants. The resident manager is required to supervise the occupants and to ensure their compliance with rules to be known as “Boarding House Rules” (“the Rules”) which, inter alia, impose a code of conduct on the occupants.

4 The site is affected by the provisions of the Warringah Local Environmental Plan 2000 (“the LEP”). Pursuant to its provisions the site is located in the E1-Dee Why North Locality as set out in Appendix E of the LEP. The site is not located within a local retail centre as illustrated on the locality map for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] NSWLEC 246
Decision Date: 02/05/2003

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the applicant Luke Mackenzie sought determination regarding the categorisation of the proposed use of a property at 789 Pittwater Road, Dee Why. The applicant intended to develop a boarding house comprising 22 rooms, each with its own ensuite bathroom, and common areas for shared use by the boarders. The site is subject to the Warringah Local Environmental Plan 2000, which categorises land uses in the locality of Dee Why North. The central issue before the Court was whether the development should be assessed as a category 1 application (housing) or a category 3 application (business premises or short-term accommodation) under the Dee Why North Locality Statement of the Warringah Local Environmental Plan 2000.

The applicant argued that the development should be classified as "housing" because the building would function as a self-contained domestic establishment. The applicant relied on the definitions of "housing" and "dwelling" provided in the Dictionary to the LEP, asserting that the rooms, despite lacking kitchenettes or laundry facilities, could still be considered "dwellings" due to the management plan stipulating a minimum 42-day occupancy. The council, on the other hand, contended that the rooms were not capable of being occupied as separate domiciles due to the lack of essential facilities like kitchens and laundries, and thus did not meet the definition of "dwelling". The council further argued that the extensive supervision and rules imposed by the management plan indicated that the proposed use was more akin to a boarding house or hostel, which falls under the category of business premises.

The Court concluded that the development did not constitute "housing" as the rooms did not possess the necessary permanency of occupation to be considered "dwellings". The extensive supervision and rules imposed by the management plan also indicated that the use was not consistent with the freedom associated with a separate domicile. While the development did not fit the definition of "short-term accommodation", the Court found that it properly characterised as a business, providing rooms and services. Consequently, the Court ruled that the development application was not for "housing" and therefore not category 1 development. It was categorised as a category 3 "business premises" or "short-term accommodation".

The Court ordered that the exhibits be returned to the parties.

Orders