McAuley v Northern Region Joint Regional Planning Panel
[2013] NSWLEC 125
•02 August 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: McAuley v Northern Region Joint Regional Planning Panel [2013] NSWLEC 125 Hearing dates: 12 February 2013 Decision date: 02 August 2013 Jurisdiction: Class 4 Before: Craig J Decision: 1. Summons dismissed.
2. Costs reserved.
3. Direct that any party seeking an order for costs provide to my Associate within 14 days and to the other parties within that same time a short written outline of submissions in support of the order sought.
4. Direct that any party opposing an application made in accordance with order 3 provide to my Associate within a further 14 days and to the other parties within the same time a short written submission by way of response.
5. Any party seeking to address the Court orally in support of a submission filed in accordance with orders 3 or 4 must so indicate in their written submissions.
6. Exhibits may be returned.
Catchwords: ADMINISTRATIVE LAW - judicial review - development consent - characterisation of development - consent for a "transitional group home" - definitions in State Environmental Planning Policy (Affordable Rental Housing) 2009 and Coffs Harbour City Local Environmental Plan 2000 - residential facility for rehabilitation of those recovering from drug and alcohol abuse - whether development proposed was a "dwelling" within the definition of "transitional group home" - interpretation of defined composite expression by reference to the meaning of constituent parts - whether occupied as a single household - ancillary development - summons dismissed Legislation Cited: Civil Procedure Act 2005
Coffs Harbour City Local Environmental Plan 2000
Standard Instrument (Local Environmental Plans) Order 2006
State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004
State Environmental Planning Policy (Affordable Rental Housing) 2009
Uniform Civil Procedure Rules 2005Cases Cited: Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404
Blacktown City Council v Haddad [2012] NSWLEC 224; 192 LGERA 264
Burwood Municipal Council v Aboriginal Hostels Ltd (1979) 39 LGRA 150
Cecil E Mayo Pty Ltd v Sydney City Council (1952) 18 LGR (NSW) 152
Chamwell Pty Limited v Strathfield Council [2007] NSWLEC 114; 151 LGERA 400
Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389
Dooralong Residents Action Group Pty Limited v Wyong Shire Council [2011] NSWLEC 251; 186 LGERA 274
Exxon Corporation v Exxon Insurance Consultants International Ltd [1982] Ch 119; [1981] 3 All ER 241
Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157
Matic v Mid-Western Regional Council [2008] NSWLEC 113
Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31
The Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305
Schroders Australia Property Management Ltd v Shoalhaven City Council & Anor [2001] NSWCA 74
Wilson v State Rail Authority of New South Wales [2010] NSWCA 198; 78 NSWLR 704
Wollongong City Council v Vic Vellar Nominees Pty Limited [2010] NSWLEC 266; 178 LGERA 445
Woolworths Ltd v Pallas Newco Pty Ltd & Anor [2004] NSWCA 422; 136 LGERA 288Category: Principal judgment Parties: Karen Lynnette McAuley (Applicant)
Northern Region Joint Regional Planning Panel (First respondent)
Coffs Harbour City Council (Second respondent)
North Wish Pty Ltd (Third respondent)
Adele Dundas Inc (Fourth respondent)Representation: S M Berveling (Applicant)
Submitting appearance (First respondent)
Submitting appearance (Second respondent)
A E Galasso SC (Third respondent)
J E Robson SC with R D White (Fourth respondent)
Fishburn Watson O'Brien Solicitors (Applicant)
Legal Services, Department of Planning and Infrastructure (First respondent)
Sparke Helmore Lawyers (Second respondent)
Bartier Perry Solicitors (Third and Fourth respondents)
File Number(s): 41068 of 2012
Judgment
Adele Dundas Inc (Adele), the fourth respondent, is a registered charity conducting residential rehabilitation programs for men recovering from drug and alcohol abuse. For the purpose of developing a new residential rehabilitation facility, Adele sought and obtained development consent to do so on a rural property at 215 Randalls Road, Bucca on the North Coast of New South Wales (the Property).
Conditional development consent for this new facility was granted by the Northern Region Joint Regional Planning Panel (the JRPP) on 29 August 2012 (the Consent). Adopting the rubric of the relevant planning instruments, the development is described in the Consent as "transitional group home".
By summons filed on 17 October 2012, Karen McAuley challenges the validity of the Consent. She seeks a declaration that the Consent is invalid and also an injunction restraining both the landowner and Adele from carrying out development pursuant to the Consent.
Ms McAuley asserts invalidity of the Consent on three bases:
(i) the development for which the Consent was granted is not a "transitional group home" within the meaning of Coffs Harbour City Local Environmental Plan 2000 (the LEP);
(ii) the grant of consent contravenes cl 18 of the LEP in that two or more dwellings are proposed to be erected on the Property; and
(iii) dwelling houses to be erected in accordance with the Consent are not ancillary to the "transitional group home" development and are thereby prohibited by cl 18 of the LEP.
Ms McAuley accepts that these three grounds of challenge essentially identify the central issue in the proceedings as being the correct characterisation of the development for which the Consent was granted.
Both Adele and North Wish Pty Ltd, the owner of the Property and third respondent, submit that Ms McAuley has failed to make good any of her grounds of challenge. I agree with that submission and for the reasons that follow propose to dismiss the summons.
The parties
Adele and North Wish Pty Ltd were the active respondents in the proceedings. The development application was lodged with Coffs Harbour City Council (the Council) who was joined as the second respondent. However, having regard to the "capital investment value" of the development proposed by Adele, the JRPP was the Consent authority for the purpose of determining the development application. As a result, the JRPP was joined as the first respondent in the proceedings.
Each of the Council and the JRPP have filed submitting appearances, save as to costs.
The development application
There is no dispute among the parties as to the material provided to the Council with and in support of the development application made by Adele. That material was available to the JRPP at the time at which it granted the Consent. It is that material which has been tendered in these proceedings, founding the submissions made by the parties and providing the source of the facts stated in this judgment. There is no evidence tendered by Ms McAuley to indicate that this material was not considered by the JRPP when determining to grant consent (cf Schroders Australia Property Management Ltd v Shoalhaven City Council & Anor [2001] NSWCA 74 at [72]).
The Property has an area of 95.41 hectares. Its northern half is steeply sloping and contains extensive forest vegetation. The southern half of the Property is generally cleared to pasture with level to undulating topography. Within the latter area is an existing dwelling and ancillary sheds. There are a number of farm dams and fenced paddocks located within the Property, with a series of water tanks on a hilltop used to store water pumped from dams to supplement water collected in rainwater tanks at the existing dwelling. The Property is used as a working farm.
Development consent was obtained from the Council in 2011 to use part of the farm as a plant propagation and nursery area and to erect two single storey farm sheds to accommodate farm machinery, a wood and metal repair workshop, maintenance area and facilities associated with that activity. All of the current agricultural activities, together with those approved in 2011, were intended to be maintained in conjunction with the present development proposed by Adele. As will be seen, the continuation of these agricultural activities was integral to the development and additional land use that was the subject of Adele's development application.
The Statement of Environmental Effects accompanying the development application (the SEE) described the physical aspects of the development involved and the manner in which the new facility is intended to be used. The SEE was supplemented by additional information provided to the Council and the JRPP prior to the application being determined.
The drug and alcohol rehabilitation program provided by Adele is described as a three phase residential program involving exercise, group counselling and training to return participants to employment and independent living. It is intended that the new facility would provide short term accommodation for those registered to enter the program for a period of between three to six months. The rehabilitation program is shown to be supported by a number of government health agencies and also by the New South Wales Adult Drug Court.
Those participating in the rehabilitation program are supervised by staff at all times. The facility will have 12 full time staff employed from 9.00am to 5.00pm Monday to Friday. After hours supervision, on a rostered basis, will be provided by two staff members residing on the Property in a staff accommodation precinct.
The existing dwelling on the Property will be retained to provide office accommodation and administration directly associated with the operation of the Property as a working farm and its associated facilities.
Within that part of the Property being considered for additional development, the application proposed that there be five precincts described respectively as a farm maintenance and plant nursery precinct, a group home precinct, a staff accommodation precinct, a chapel precinct and a recreation precinct. Prior to consideration of the application by the JRPP, development of and within the recreation precinct was withdrawn from the application. According to the SEE, each precinct has been purpose designed to facilitate the progress of clients through the rehabilitation program, emphasising the use of the Property as a working farm.
Development involving site works or the erection of buildings and structures that were proposed and authorised by the Consent involved the group home precinct, the staff accommodation precinct and the chapel precinct. Condition 6 of the Consent expressly excluded development identified as the recreation precinct while the plant nursery and farm maintenance precinct involved no more than identification of an area within which both buildings and activities were the subject of the consent granted by the Council in 2011. No further consent was required to use that area for the purpose of operating the facility proposed by Adele.
The group home precinct
The group home precinct is said to be the area of the Property in which buildings and facilities essential to the operation of Adele's rehabilitation program are concentrated. The buildings proposed comprise three linked pavilions constructed over a single concrete slab at lower ground floor level. Utility services necessary for all three buildings will be provided through or across this common slab. The southern pavilion is referred to as the bedroom or sleeping pavilion; the central pavilion is identified as the community pavilion while the northern pavilion is identified as a pool and gym pavilion.
The bedroom pavilion is a two storey building with each of the two floors containing 20 bedrooms. Each bedroom has ensuite bathroom facilities and a wardrobe. In addition to the bedrooms provided in this pavilion, each floor contains a single laundry facility and two lounge areas. Undercover links at each floor level are provided from this pavilion to the other two pavilions. Access is also provided to an external drying court for washing.
The community pavilion is also a building over two levels. At the lower ground floor level, interview rooms, storage areas, further laundry and toilet facilities and a further lounge area are provided together with a meeting room, group room and computer room. A kitchen, pantry and dining room are provided at ground floor level of this pavilion. In addition to a further lounge area at this level there is a room described as a conference room, together with a reception area and an area identified as office space.
The community pavilion is linked to the pool and gym pavilion with ramps, outdoor terraces and a community gathering space. The pool and gymnasium pavilion is also of two storeys with a change room, plunge pool, steam room and a small section of the gymnasium at the lower ground floor level while the ground floor level provides a lap pool and further gymnasium area.
Staff accommodation precinct
Some distance removed from the group home precinct is the staff accommodation precinct. This comprises two single storey dwelling houses each of two bedrooms, a kitchen, lounge, dining, bathroom, laundry and study. These houses are to be occupied by staff of the facility who, on a rostered basis, will be required to provide after hours supervision of the group home as well as supervising activities on the Property as a whole. Separation from the group home precinct is said to be desirable "to ensure there is effective respite for staff from the daily demands [upon them] while still providing an on-call service". It is anticipated that those staff members employed in this capacity will reside, with their respective families, in the two dwellings to be constructed.
The chapel precinct
The chapel precinct is also removed by some distance from the group home precinct. The chapel building comprises a part single storey and part two storey building in a landscaped setting. It provides seating for up to 50 people.
The SEE describes the chapel as a building "conceived as an introspective non-denominational place of reflection for the use of the clients." Justification for its separation from the group home precinct is to promote it as "a place of quiet and peaceful reflection and meditation" for those participating in the rehabilitation program.
Use of the group home
Apart from those employed to reside on the Property in the staff precinct, all other residents will be those admitted to the drug and alcohol rehabilitation program and who will reside within the group home precinct. Those persons seeking admission to the program do so voluntarily although many are encouraged to apply by a government instrumentality or the Adult Drug Court. Before being accepted for admission, each applicant is provided with the rules of the facility, a number of which I will identify. Importantly, the rules require that those seeking rehabilitation commit to the rehabilitation program, requiring residence for a period of between three and six months. In order to commence residence, clients must have abstained from drug or alcohol intake for a minimum of three days prior to admission and thereafter commit to abstain from drug or alcohol intake during the period of residence. Once admitted to the facility, "clients" as they are referred to in the SEE and supporting documents, are subject to both regular and random urine tests in order to ensure that they have abstained from drug or alcohol intake.
Once accepted for admission to the program and a place is available within the facility, the client is assigned to one of the bedrooms in the bedroom pavilion located within the group home precinct. "Rules" pertaining to the use of the group home facility require the payment of rent, including the provision of two weeks rent in advance of arrival. As the documents supporting the development application indicate that some of those accepted at the facility may be in receipt of Centrelink payments, it is assumed that some component of any such payment will be required to be paid as rent.
In order to qualify for acceptance into the residential program, clients must be identified as persons who are alcohol or drug dependent. By reason of their substance abuse they are often found to be experiencing problems of social integration and difficulty in maintaining gainful employment. The program is designed to address those difficulties.
Once admitted, for the first four weeks of residence a client is not allowed to receive any visitors, including family visitors. During this same period, any telephone contact must be booked and supervised by staff although family contact by telephone cannot take place during this period. Intensive behavioural counselling is undertaken during this period while at the same time a physical exercise regime is imposed.
Following the initial four week period, visits to clients are permitted but only during specified times that exclude times when a client is required to attend a group therapy session or the mandatory physical fitness program. Weekend visits are not generally permitted.
Following the course of intensive counselling during the first phase of the program, clients are provided with the opportunity to gain work skills on the Property, particularly by their involvement in the various aspects of its operation as a rural property. The learning of skills not only includes the operation and management of farm machinery and equipment, plant propagation and the conduct of a plant nursery, but also general farming and cropping skills together with farm management. While not engaged in these activities on the Property during the day, clients not only continue to reside on the Property but are also required to participate in programs and counselling sessions directed to improving their social and interpersonal skills as well as addressing the problems associated with drug or alcohol intake. All these programs or sessions are conducted on site.
The third phase of the program, generally occurring in the period somewhere between three and six months after taking up residence, involves clients being assisted in finding alternate accommodation, gaining outside employment and, where possible, "reconnecting with families".
Throughout the period during which clients are resident at the Property, discipline is imposed in a number of ways. These include the imposition of night time curfews and the requirement to undertake rostered tasks of a domestic nature. As well as being responsible for the cleanliness of their own bedrooms, these rostered tasks include general cleaning and assistance with communal meals.
I have set out, in summary form, the nature of the rehabilitation program to be undertaken by clients of that program as it is described, in greater detail, in the documents provided in support of Adele's development application. That information informs the manner in which the Property is to be used and therefore the way in which the development to which the Consent relates should be characterised.
Planning controls
In general terms, development upon the Property is subject to the controls imposed by the LEP. By reference to the map identified in the LEP, the land is zoned, in part, "Rural 1A - Agriculture Zone" and, in part, "Environmental Protection 7A - Habitat and Catchment Zone". The latter Zone relates generally to the steep forested areas of the Site. None of the development that is the subject of the Consent is to take place within the land so zoned. All of the development sanctioned by the Consent is to take place within the Rural 1A Zone.
The land use table to cl 9 of the LEP nominates those land uses that may be carried out within the Rural 1A Zone either without or with development consent. Any form of development that is not so nominated falls within Item 4 of the Table and is prohibited.
Relevantly, "agriculture" is a nominated form of development that may be carried out without consent. Without reciting its terms, the definition of "agriculture" in the Dictionary to the LEP is apt to include the farming, plant propagation and wholesale plant nursery activities that were, at the time of the Consent, being conducted on the Property.
The nominated forms of development that are permissible with consent under the land use table for the Rural 1A Zone relevantly include "dwelling-houses" and "group homes". The Dictionary defines group home as follows:
group home means a permanent group home or a transitional group home, but does not include a special care home.
It is common ground that the development proposed is neither a "permanent group home" nor "a special care home".
The expression "transitional group home" is defined in the Dictionary to the LEP in the following manner:
transitional group home means a dwelling:
(a) used to provide temporary accommodation, for the purposes of relief or rehabilitation, for disabled persons or socially disadvantaged persons, whether those persons are related or not, and
(b) occupied by the persons referred to in paragraph (a) as a single household, either with or without paid or unpaid supervision or care and either with or without payment for board and lodging being required,
but does not include a building to which State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 applies.
The word "dwelling" is also defined in the Dictionary:
dwelling means a room or number of rooms occupied or used, or so constructed or adapted as to be capable of being occupied or used, as a separate domicile, whether or not used temporarily for display purposes.
As I have earlier indicated, one of the bases of challenge advanced by Ms McAuley is that the proposed development offends the provisions of cl 18 of the LEP. That clause relevantly provides:
18 Subdivision and erection of dwellings within rural and environmental protection zones
Objective of provision
To allow the subdivision of land in accordance with the land's environmental capacity and zone objectives.
(1) This clause applies to land in Zone 1A, 1B, 1F, 7A or 7C.
...
(6) Consent shall not be granted to the erection of a dwelling-house or attached dual occupancy on an allotment of land that has an area less than that required by subclause (2) or (3).
...
(7) Regardless of subclause (6), consent may be granted to the erection of a dwelling or attached dual occupancy on an allotment which is:
...
(f) an allotment on which there is a dwelling and where the new dwelling or the new dual occupancy is to replace the dwelling first mentioned.
How Ms McAuley seeks to apply this clause in the context of this case will be discussed in due course.
Although Ms McAuley has founded her challenge upon the provisions of the LEP, both Adele and North Wish Pty Limited rely upon the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (the Affordable Housing SEPP) as a source of power for the grant of consent. Division 7 of the Affordable Housing SEPP is directed to development for the purpose of group homes. Clause 43 relevantly provides:
43 Development in prescribed zones
(1) Development for the purpose of a permanent group home or a transitional group home on land in a prescribed zone may be carried out:
(a) without consent if the development does not result in more than ten bedrooms being within one or more group homes on a site and the development is carried out by or on behalf of a public authority, or
(b) with consent in any other case.
A "prescribed zone" for the purpose of cl 43 includes a zone in which development for the purpose of dwellings or dwelling houses may be carried out, with or without consent, under an environmental planning instrument: cl 42(1). It will be remembered that dwelling houses are permissible with consent in the Rural 1A Zone under the LEP.
The expression "transitional group home" is not defined in the Affordable Housing SEPP. However, by cl 4(2) of that Policy, it is provided that a word or expression used but not defined in the Policy is to have the meaning given to that expression in the Standard Instrument (Local Environmental Plans) Order 2006 (the Standard Instrument) prior to the amendment of that Order in 2011. The relevant definition found in the Standard Instrument prior to the 2011 amendment was:
group home (transitional) or transitional group home means a dwelling:
(a) that is occupied by persons as a single household with or without paid supervision or care and whether or not those persons are related or payment for board and lodging is required, and
(b) that is used to provide temporary accommodation for the relief or rehabilitation of people with a disability or for drug or alcohol rehabilitation purposes, or that is used to provide half-way accommodation for persons formerly living in institutions or temporary accommodation comprising refuges for men, women or young people,
but does not include development to which State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 applies.
The Consent
As I have earlier recorded, the purpose for which the JRPP resolved to grant the Consent on the Property was expressed as being "for a group home". The Consent was expressed to be subject to a number of conditions that had been circulated in draft to members of the Panel prior to its resolution granting consent.
Conditions 3 and 4 required the development to be undertaken in accordance with a number of identified architectural plans and documents. The plans to which reference was made were those identifying the buildings and works that I have earlier described. The documents to which reference was made included the SEE and a Social Impact Assessment identifying those requirements for admission to the program conducted by Adele on the Property and the controls to be imposed upon participants or "clients". The circumstance that development proposed for the "recreation precinct" had been withdrawn and that no approval was given for development of that area was recorded as Condition 6.
A number of other conditions upon which the Consent was given and which are relevant to the characterisation of the use for which that consent was granted should be noticed. These include:
(i) Condition 38 which stated that the development was approved "for a maximum number of 40 residents undertaking rehabilitation programs at the transitional group home";
(ii) Condition 39 limited the use of the existing farm dwelling to "farm and facilities management" and proscribed its use as a separate domicile;
(iii) Condition 40 restricted the use of the two dwellings in the staff accommodation precinct to use by "staff of the transitional group home and their immediate families only";
(iv) Condition 42 limited the use of two bedrooms within the existing farm dwelling to overnight accommodation "for persons visiting residents undertaking rehabilitation programs of the transitional group home";
(v) Condition 43 limited use of the chapel to purposes associated with "the transitional group home use"; and
(vi) Condition 49 required that "[t]he development is to operate at all times in accordance with the definition of 'group home (transitional) or transitional group home'" as that definition was expressed in the Affordable Housing SEPP, the terms of that definition being set out in the condition.
These conditions reflected the development in the form and manner of operation proposed at the time at which the application was determined.
Characterisation: a transitional group home?
The characterisation of development for the purpose of determining its permissibility in accordance with an environmental planning instrument is an essential task to be undertaken when considering any proposal for development. That task almost always involves questions of fact and degree; it often involves, as in the present case, the proper interpretation of the relevant environmental planning instrument (Chamwell Pty Limited v Strathfield Council [2007] NSWLEC 114; 151 LGERA 400 at [57]).
Moreover, as all parties accepted, characterisation of the development for which the Consent was granted to Adele is "jurisdictional". In judicial review proceedings of the present kind, the correct characterisation of development must be determined by this Court on the evidence before it rather than by any notion of deference to the decision made by the JRPP (Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; 136 LGERA 288 at [86]).
As it happened, the evidence tendered in these proceedings was, for all relevant purposes, the same evidence available to and considered by the JRPP. Nonetheless, the central issue in these proceedings involves my determination as to whether the development described in the evidence properly engages the permissible development purpose of a transitional group home.
The principles that inform the approach to characterisation have been the subject of a number of decided cases. Those cases are usefully collected by Pain J in Dooralong Residents Action Group Pty Limited v Wyong Shire Council [2011] NSWLEC 251; 186 LGERA 274 at [34] - [35] and [99]. These principles, about which there is agreement among the present parties, may be summarised as follows:
(i) characterisation must be undertaken in a commonsense and practical way;
(ii) a use must be for a purpose, being the end to which the use of the land can be seen to be put;
(iii) the use of land involves no more than the physical acts by which the land is made to serve some purpose;
(iv) in determining whether land is used for a particular purpose, an inquiry into how that purpose could be achieved is necessary;
(v) the characterisation of the purpose should be undertaken at a level of generality necessary and sufficient to cover the individual activities, transactions or processes carried on and not in terms of those detailed activities or processes, but not so general as to embrace activities transactions or processes which differ in kind from the use to which the activities, as a class, are proposed for the land in question; and
(vi) the characterisation is undertaken for a planning purpose.
Ms McAuley had initially founded her submission as to characterisation by reference to the definition of "transitional group home" in the LEP. She did so on the basis that the SEE focused upon that definition and made no reference to the relevant definition found in the Affordable Housing SEPP. However, reports prepared by officers of the Council for consideration by the JRPP when determining the development application made extensive reference to both the LEP and the relevant definitions found in the Affordable Housing SEPP. Indeed, it was contended in the report prepared by Council staff that the Affordable Housing SEPP was the overriding planning instrument. As a consequence, focus was placed upon its provisions for the purpose of characterising the proposed development and reporting upon its permissibility.
Given that the reports prepared by Council staff were prepared specifically for consideration by the JRPP, it is likely that the question of permissibility was determined with focus upon the Affordable Housing SEPP. The probability that this was the basis of assessment is supported by the imposition of Consent Condition 49 to which I have earlier referred. That was the condition requiring the development to operate in accordance with the definition of "transitional group home" as it appears in the State Policy.
Ultimately, Mr S Berveling, counsel for Ms McAuley, accepted that in making its decision as to the permissibility of the development, the provisions of the Affordable Housing SEPP, including the definition of "transitional group home", were in all probability considered and applied by the JRPP. However, he maintained the submission that whether regard be had to the definition found in the State Policy or to that found in the LEP, properly characterised, the development proposed by Adele did not fall within either definition. As a consequence, the development fell within Item 4 of the land use table to cl 9 of the LEP and was therefore prohibited.
As I have earlier recorded, that part of the Property proposed for development is within the Rural 1A Zone shown on the map to the LEP. The land use table for land so zoned is framed so that those purposes of land use for which no development consent is required are nominated in Item 2 of the table and those purposes of use for which development consent is required are nominated in Item 3. Both "group homes" and "dwelling-houses" are nominated in Item 3. Any form of development not nominated in either Items 2 or 3 is prohibited: Item 4. Thus, it is necessary that the Adele development be properly characterised as a "transitional group home" in order to be permissible in the Rural 1A Zone. It is not submitted by the respondents that the development for which consent was granted engages any other form of land use nominated in Items 2 or 3 of the land use table.
While the fact that "dwelling-houses" are a permissible form of development in the Rural 1A Zone is sufficient to engage the provisions of cl 43 of the Affordable Housing SEPP, it remains necessary to determine that the development proposed engages the definition of a "transitional group home" within the meaning of that Policy. If it does not, that Policy does not override the prohibition expressed in the LEP.
All parties accept that, whichever definition of "transitional group home" is applied, broadly speaking there are four concepts to be considered for the purpose of categorisation. Given the manner in which the submissions proceeded, it is convenient to identify these concepts by reference to the definition appearing in the Affordable Housing SEPP. Those concepts are:
(i) that the group home be a "dwelling";
(ii) that it be occupied by persons as a single household, with or without paid supervision or care and whether or not those persons were related or payment for board and lodging was required;
(iii) that the "dwelling" be used to provide temporary accommodation for the relief or rehabilitation of people for drug or alcohol rehabilitation purposes or for people with a disability or used to provide half-way accommodation for persons formerly living in institutions or temporary accommodation comprising refuges for men, woman or young people; and
(iv) development so described does not include development to which the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 applies.
Paragraph (iv) is not relevant to any issue raised in the present proceedings.
The primary focus of the submissions made by Ms McAuley is upon the first element of the definition namely that which requires that the group home be "a dwelling". While not defined in the Affordable Housing SEPP itself, by cl 4(2) it is defined for the purpose of that Policy in the Standard Instrument in the following way:
dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile.
As will be apparent from [38], subject to a qualification that is not presently relevant, the term "dwelling" is defined in the LEP in terms that do not materially differ from those that I have just quoted.
Applying the provisions of the definition, Ms McAuley submits that the buildings proposed to be erected by Adele in accordance with the Consent will not be constructed so as to be capable of being occupied or used as a separate domicile. In essence, she focuses upon the number and size of buildings concerned and the separation among buildings of those facilities that would ordinarily identify a room or suite of rooms necessary for separate living. At the forefront of her submission is the proposition that the degree of permanence implicit in the term "domicile" is not present for the very reason that the development application proposes a stay for clients of between three and six months, it being the very purpose of Adele's program that occupants of the facility be sufficiently rehabilitated so that they are able to return to outside employment and independent living elsewhere.
If the focus for present purposes is directed to the definition of "dwelling", independently of the use of that term in context, there is much jurisprudential support with its emphasis on permanence, or at least intended permanence, of occupation at a particular location. The concept of "domicile" as used in the definition of "dwelling" was considered by Biscoe J in Wollongong City Council v Vic Vellar Nominees Pty Limited [2010] NSWLEC 266; 178 LGERA 445. The definition there being considered by his Honour was not materially different from that presently applicable. His Honour said (at [32]):
In this context, 'domicile' embodies the idea of a permanent home or a significant degree of permanency of habitation or occupancy.
Authority is there cited which I do not repeat but respectfully adopt.
Moreover, there have been a number of decided cases in which it has been necessary to determine whether the use of a building constituted that of a "dwelling" or "dwelling-house" for the purpose of planning law where occupation of the building or buildings was by a number of unrelated persons. One such decision, relied upon by Ms McAuley, is that of the Court of Appeal in Burwood Municipal Council v Aboriginal Hostels Ltd (1979) 39 LGRA 150. The respondent owned two houses in Metropolitan Sydney that had been purchased to provide accommodation for Aboriginal youth, selected to attend technical college or apprenticeship courses in Sydney. Each house was managed by "house parents" who provided some supervisory and disciplinary function. It was claimed that the houses were being used as "dwellings". The Court of Appeal rejected that submission.
The leading judgment was delivered by Samuels JA (Hutley and Mahoney JJA agreeing). In rejecting the contention that the buildings were used as dwellings, his Honour said (at 152-153):
The group here is not based on family or kin relationship, nor upon choice arising from some personal or social association, or community of interest, but is established by authority outside the group using criteria such as membership of the aboriginal race, and adaptability and desire for technical training. The boys, when selected for a course, are sent to this accommodation and expected to remain there for the period of their training. But they are necessarily a transitory population; because they remain only for the duration of their course and their stay in no case exceeds twelve months ... When their time is up, they are bound to go, unless in particular cases they are allowed to remain for a few months. But this privilege is not exercised solely at their option. In addition, the method of financial organization by which the group is governed, including Treasury audit and funding of the group from external sources, is hardly comparable to ordinary domestic arrangements.
His Honour also addressed the concept of "domicile" in the context of the definition of "dwelling". He said (at 153):
'Domicile' here is used in preference to 'residence' or 'home' or 'habitation' and must be intended to bear its technical legal meaning which is that of a place of permanent residence to which the subject, if absent, has the intention of returning. A person may have several residences; but can have only one domicile, at least for any one purpose. I do not think that the buildings can possibly be regarded as the pre-eminent place of permanent residence of any of those who now occupy them.
Ms McAuley submits that the accommodation arrangements that were considered in Aboriginal Hostels "are akin to those" of the Adele development application. Clients enter the program conducted at the Property for the duration of Adele's rehabilitation program, but, upon its completion, are required to leave. This is transitory accommodation and cannot, by dint of that fact, constitute the "domicile" of those undertaking the residential program.
I accept the submission of Ms McAuley to the extent that one must acknowledge the word "dwelling", as defined, when seeking to determine whether a given form of development may properly be characterised as "transitional group home". The fact that the word is defined in each of the planning instruments being considered requires as much. However, the circumstance that the word is separately defined does not have the consequence that its defined meaning controls the meaning of the term "transitional group home", being the defined term to which the material facts are to be applied.
As with any phrase used in either a statute or planning instrument, purpose and context are important - indeed fundamental - when determining the proper meaning of that phrase (Matic v Mid-Western Regional Council [2008] NSWLEC 113 at [7] - [9]; Wilson v State Rail Authority of NSW [2010] NSWCA 198; 78 NSWLR 704 at [12] - [13]). Relevantly, the context in which "dwelling" is to be interpreted is its use within a composite phrase that is, in turn, the subject of separate definition in each of the Affordable Housing SEPP and the LEP. The interpretation of that phrase should not be undertaken by severing the phrase into parts and applying a meaning to each severed part (Wollongong City Council v Vic Vellar Nominees Pty Ltd at [47]). As Biscoe J observed in Vic Vellar Nominees, the High Court in Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389 at 400 cited with approval the observations of Oliver LJ in Exxon Corporation v Exxon Insurance Consultants International Ltd [1982] Ch 119; [1981] 3 All ER 241 where his Lordship said (at 144):
... for my part I do not think that the right way to apply a composite expression is, or at any rate is necessarily, to ascertain whether a particular subject matter falls within the meaning of each of the constituent parts, and then to say that the whole expression is merely the sum total of the constituent parts. In my judgment it is not necessary, in construing a statutory expression, to take leave of one's common sense.
I am not persuaded that Ms McAuley has applied these principles when formulating her submissions as to the proper interpretation of "transitional group home". While I accept that the group home is required to comprise a "dwelling", the meaning of that term in the composite phrase is qualified by the provisions of paragraphs (a) and (b) of the definition which determine both the manner of its occupation as a building and the purpose of its use. That purpose, so described, is relevantly the provision of "temporary accommodation ... for drug or rehabilitation purposes" (or, in the case of the LEP, for "socially disadvantaged persons"), a requirement that could never satisfy the "technical legal meaning" of "domicile" as applied in Burwood Municipal Council v Aboriginal Hostels Ltd.
Emphasis upon permanence of occupation of the kind adverted to in the latter case was at the forefront of the submissions advanced on behalf of Ms McAuley. When asked in the course of argument how a particular facility might accord with the level of permanence said to be required by use of the word "dwelling" and yet provide the "temporary accommodation" of the kind referred to in the definition, the response was to acknowledge that there is "conflict within those two components of the definition" (Tcpt 26: 16 - 17). In further response to that question, two further points were, in essence, made by Mr Berveling.
First, he pointed to a number of definitions within the LEP in which particular kinds of land use, involving the provision of accommodation, are identified without reference to a "dwelling". Thus, a "boarding house" is defined by reference to "a building" providing certain facilities; each of "hotel" and "motel" are defined by reference to "premises" while "seniors housing" is defined to mean "residential accommodation" consisting of different kinds of building, only one of which is referred to as a dwelling. As a consequence, so it is submitted, the use of the word "dwelling" in the definition of "transitional group home" was intentional and ought to have the connotation of permanence for which the applicant argues.
Secondly, an example offered of the way in which the definition of "transitional group home" would operate in the manner contended for was as a place of residence for someone suffering substance dependency who had no other place to live. Thus, so the argument ran, that would constitute the only place to be called "home" by that person at the time of admission and as the period of stay was indefinite it had the requisite degree of permanence.
A further example that was offered was use of a facility having the attributes of a house but used by a person as a half-way house, enabling that person, either by reason of disability or some form of social disadvantage, including drug or alcohol dependency, to gain sufficient skills in order to return "into mainstream society" (Tcpt 30: 25-30). When I suggested that the facility proposed by Adele fell within that example, the proposition was rejected on the basis that the proposed building or buildings did not constitute a "dwelling". The response appeared to be founded on the proposition that the facility proposed by Adele is for the purpose of rehabilitating rather than accommodating those dependent upon drugs or alcohol and thus their stay is not for the purpose of residence but rather for rehabilitation.
The written submissions filed on behalf of Ms McAuley also suggest that the size of the buildings proposed for the "transitional group home" are antithetical to the definition of "dwelling". The number of bedrooms, the number of buildings and the nature of the facilities provided, particularly those within the community pavilion, are identified in support of this submission.
I am not able to accept these submissions. The application of a "commonsense" approach to the understanding of the word "dwelling" when used in the definition of "transitional group home" requires that its defined meaning, at least as determined in earlier jurisprudence, be modified so as to operate harmoniously with the defined expression of which "dwelling" is but an element.
Approaching the definition of "transitional group home" in that way requires, so it seems to me, a building -
(i) that contains a room or number of rooms;
(ii) that room or those rooms, when considered in their totality, are to be constructed or configured so as to contain those facilities that are necessary for the occupant or occupants as a group, to enjoy self-contained living; and
(iii) whose occupants have a community of interest or cohesion in using those facilities while residing in that building.
Although expressed in a little more detail, I do not perceive these elements of "dwelling", at least at a level of principle, to be inconsistent with recent authority. In Wollongong City Council v Vic Vellar Nominees Pty Ltd Biscoe J said (at [30]):
In Lewin v End [1906] AC 299 at 304 Lord Atkinson said: "By a 'dwelling-house' I understand a house in which people actually live or which is physically capable of being used for human habitation." This, I think, is roughly reflected in the two parts of the WLEP definition of "dwelling", which is then incorporated into the definition of "dwelling-house".
As I have earlier recorded, the definition of "dwelling" there being considered by his Honour did not differ materially from the definition presently being considered. It is a description apt to be applied when interpreting the "dwelling" aspect of a "transitional group home".
The elements of a "dwelling" that I have identified for the purpose of considering its meaning within the definition of "transitional group home" is informed by paragraphs (a) and (b) of the latter definition. Assuming the "dwelling" to comprise more than one room, my reference to the necessity for the rooms, in their totality, to provide a facility for separate living by the occupants, as a group, is informed by the requirement in paragraph (a) that the building be occupied "as a single household". Such a notion may generally identify a group of people living together as a unit (Oxford English Dictionary, on-line edition) or "the people of a house collectively" (Macquarie Dictionary, on-line edition). An element of cohesion among occupants would generally be an aspect of a "household", particularly in the use and enjoyment of its facilities as a whole. In Blacktown City Council v Haddad [2012] NSWLEC 224; 192 LGERA 264, having identified the definitions to which I have referred, Pepper J observed (at [50]):
This is not to say that living together as a unit cannot nevertheless occur between unrelated occupants of a home. Such arrangements are commonplace in share-households. And while the occupants will not engage with each other in the same way that a family would, they will nevertheless live as a unit, dividing household chores and bills, and typically engaging in a degree of social activity.
The qualification expressed in paragraph (b) of the definition of "transitional group home" as applied by the Affordable Housing SEPP provides further insight into the manner in which the term "dwelling" should be understood. Not only does that paragraph, by its reference to "temporary accommodation", gainsay the conventional jurisprudence as to the meaning of "domicile" but by stating the purpose for which residents can use the building, the paragraph identifies the commonality or community of purpose sufficient to identify the unifying element of a "single household".
Setting aside the size of the proposed facility for the present, the buildings in the "group home" precinct do, to my mind, contain the elements of "dwelling" as I have identified them relevant to the permissible development purpose being construed. The bedroom pavilion contains bedrooms, each with ensuite bathing and toilet facilities - a facility that is not uncommon in "traditional dwellings" at the present time (Haddad at [52]). Each of the two floors of bedrooms has lounge facilities for clients as well as laundry facilities that are shared among them.
There is a single kitchen, pantry and single dining area designed to accommodate all those who are resident in the group home precinct. Apart from the smaller lounge areas on the bedroom floors, there is a larger lounge area adjacent to the dining area intended for residents as a group. Also adjacent to this area is a computer room. These are all facilities necessary and appropriate to enable the clients, as a group, to enjoy self-contained living at the facility (cf Wollongong City Council v Vic Vellar Nominees Pty Ltd at [64]).
When determining whether the use of the building or buildings exhibits the elements of a "dwelling" in the manner identified by me, it is also important to recognise that the proposed and sanctioned land use involves a residential program for rehabilitation of drug or alcohol dependent males. While undertaking that rehabilitation program, it is integral to it that the clients will reside at the facility. That will be the client's place of abode for a period of between three to six months. Such a period of residence is consistent with the "temporary accommodation" identified as a necessary component of the permissible form of land use.
The community of interest or cohesion to which I have referred is evident in two ways from the material supporting Adele's development application. First, resident clients have a community of interest in seeking rehabilitation from a common addiction. The program for rehabilitation involves the provision of therapy in group sessions and supervised work on the Property as a group. While individuals may leave because of expulsion following disobedience of house rules or upon completion of a program, the community of interest, rehabilitation program and work training on the Property is ongoing.
Secondly, the cohesion or community of interest is apparent from the requirement that clients undertake "domestic" chores associated with the "dwelling", much as would be required in a "traditional" single household. Responsibility for those domestic chores extends to cleaning and kitchen duties for the common good.
In summary, I am satisfied on the evidence before me that the elements of "dwelling" as used in the defined expression "traditional group home" are, at least in principle, satisfied in the development proposed by Adele and to which consent was granted by the JRPP. This is so whether reference is made to the definition adopted for the Affordable Housing SEPP or that found in the LEP. As I understood his submission, Mr Berveling accepted that the provision of temporary accommodation for men requiring rehabilitation from drug or alcohol addiction were "socially disadvantaged persons" for the purpose of the LEP definition. Therefore, it remains to be determined whether, by reason of the size of the facility or disposition of buildings proposed by Adele, the development ceases to engage the definition of "transitional group home" expressed in either planning instrument.
Nothing in the definition of "dwelling" identifies the necessity for the activity to be contained within a single building. Remembering that the definitions are directed to development for a purpose, use of land for the purpose of a "dwelling" or "dwelling-house" not infrequently involves consideration of more than one building identified as fulfilling either purpose. Thus, a stand-alone motor garage to accommodate vehicles used by a family occupying a "dwelling-house" will be characterised, for planning purposes, as a "dwelling-house" use.
Equally, modern single family homes are sometimes designed with two or more pavilions between or among which the facilities essential for separate family living are dispersed. Whether it be a granny-flat, teenage retreat, pavilion containing swimming pool, spa and exercise room or pavilions separately containing sleeping accommodation and family living accommodation, all can be found and appropriately characterised under the planning rubric of "dwelling-house". Often these separate buildings or pavilions will have close physical interconnection. So also in the present case.
As I have earlier described, the three pavilions that constitute the centre of the "group home" facility share a common lower ground floor slab and are interconnected by covered walkways to facilitate comfortable and easy passage between or among them.
In summary, I do not regard the fact that the facility provided in the group home precinct is divided among three buildings to be a matter that disengages the proposed development from the definition of "transitional group home".
As I have earlier recorded, Ms McAuley submits that the size of the accommodation and living elements of the proposed facility are such as to render the "dwelling" designation to be inappropriate. I do not agree.
Neither the Affordable Housing SEPP nor the LEP seek to restrain the number of bedrooms that can be provided, nor the number of persons that can be accommodated in a transitional group home facility. For this reason, the number of bedrooms provided does not, of itself, determine that a particular building or buildings do not constitute a "dwelling" (Haddad at [45]). Clearly, the number of bedrooms provided in a dwelling potentially impact upon the size of other facilities necessary to accommodate the use of the building as a dwelling.
Moreover, it is implicit in the definition of "transitional group home" that the facility will have an "institutional" aspect to it. This follows from the fact that clients will not be related and that their entitlement to reside in the facility is dependent upon them having social or physical characteristics that separate them from the norms of society. Inevitably, the provision of facilities necessary to enable those clients to operate as a "single household" may logically cause some of the home facilities, such as kitchens and lounge areas, to differ from those that might be expected in a traditional family house.
Further, there are provisions of each planning instrument that speak against the kind of limitation on size implicit in the submissions made on behalf of Ms McAuley. By cl 43(1)(a) of the Affordable Housing SEPP, development for the purpose of a "transitional group home" that does not contain "more than 10 bedrooms being within one or more group homes on a site" and which is to be carried out by a public authority is development that may be undertaken without the requirement for development consent. This provision not only contemplates that a "transitional group home" is one that may contain many more bedrooms than would be expected in a house accommodating the textbook nuclear family, but is also demonstrative of the fact that a greater number of bedrooms may be contemplated in a facility that fulfils the requirements of the defined form of development. An exercise of planning discretion is required if the facility is one not proposed by a public authority and is intended to contain that larger number of bedrooms. Logically, even the limitation of 10 bedrooms does not impose a numerical limit on the number of those who may reside in the facility.
Reverting to my earlier observations in relation to some relationship between the number of bedrooms and the nature and size of associated facilities necessary for self contained living, it is logical to assume that in a facility providing 10 bedrooms, kitchen, lounge and laundry facilities are likely to be larger than those necessary to service a three or four bedroom home.
In the context of the LEP, the definition of "special care home" needs to be noticed. Such a home is also defined as meaning a dwelling having a number of characteristics. One of those characteristics is that it "does not contain more than five bedrooms or is occupied at the same time by not more residents ... than is equal to the number calculated by multiplying the number of bedrooms in the home by two." First, the definition demonstrates that the number of bedrooms was considered by the drafter when defining specific purposes for development but chose not to impose such a limitation when defining a "transitional group home". Secondly, the formula identified in the definition of "special care home" would seem to contemplate that the "dwelling" may contain a large number of bedrooms provided that number meets the formula for resident occupation stated in the definition.
Ms McAuley identifies the existence of an administration office, interview rooms and a conference room as being the antithesis of rooms or areas that one would expect to find in a "dwelling". While I accept that those areas, so described, would not usually be found in a traditional house, I do not accept that their existence denies the facility, seen as a whole, from being characterised as a "transitional group home". First, as I have already indicated, the definition, read as a whole, contemplates an institutional aspect to this form of development. As people are accommodated on a temporary basis to undertake rehabilitation or to use the premises as a half-way house, some form of administration with office facilities for administrative staff must clearly have been in contemplation. As paragraph (a) of the definition applied by the Affordable Housing SEPP contemplates, occupants may be supervised. Provision for supervisors needs to be made within the facility.
Moreover, the definition makes apparent that the group home is something more than a place of residence. It requires that the "dwelling" itself be "used to provide temporary accommodation ... for drug or alcohol rehabilitation purposes". A commonsense reading of that requirement strongly indicates that there should be a facility or facilities onsite, such as meeting rooms, in which a program actively facilitating rehabilitation can be undertaken. The provision of those particular rooms are but a component of the overall purpose for which development of a "transitional group home" may be undertaken and do not determine the characterisation of the development considered as a whole (Chamwell v Strathfield Municipal Council at [38] and [45]).
Occupied as a single household
The criterion identified in paragraph (a) of the definition of "transitional group home" applied by the Affordable Housing SEPP (or paragraph (b) of the definition in the LEP) has already been addressed by me. The only submission made by Ms McAuley in relation to this aspect of the development, beyond that which has already been addressed, appears in her written submissions at [20], claiming that "the practicalities of occupation are dependent on the operation of the rehabilitation program, taking it out of a domestic household situation." That submission was not further elaborated in oral submissions.
For reasons earlier given, the material lodged in support of the development application and tendered in evidence satisfies me that the intended accommodation is to be provided for the rehabilitation of men who, at the time of taking up residence, are suffering from drug or alcohol dependency. That relief or rehabilitation of residents falling into that category is to be undertaken on site and in the manner earlier described. Indeed, in oral submission I understood Mr Berveling to concede that the proposed facility was to be occupied by intended residents as a single household (Tcpt 25: 24-26). For those reasons that I have earlier given addressing this aspect of the definition, the concession was properly made.
In Blacktown City Council v Haddad Pepper J was required to consider the meaning and application of the word "dwelling" as used in the definition of "permanent group home" in the Dictionary to the Standard Instrument. The structure of that definition is similar to that found in the definition of "transitional group home" in the Instrument.
Her Honour determined that the development being considered in Haddad lacked the element of permanence implicit by use of the word "dwelling" in the definition of "permanent group home". The factual basis upon which she reached that conclusion is summarised at [53] of her judgment. The factual matters so identified differ markedly from those which describe the development proposed by Adele. Particularly is this so in respect of the manner of use proposed in the Adele development which, for reasons that I have indicated, satisfy me that the "dwelling" will be occupied as a single household. For that reason I do not discern any inconsistency between the decision of her Honour in that case and the conclusion reached by me in this case.
Used to provide temporary accommodation
This element of the definition, more fully expressed in paragraph (b) of that definition applied by the Affordable Housing SEPP (and paragraph (a) of the LEP), was accepted to be satisfied in the development proposed by Adele. However, it is the fact that the accommodation is temporary and does not constitute the domicile of occupants which founds Ms McAuley's submission denying that the development satisfies the definition of "transitional group home".
I have already addressed and do not repeat my response to the submissions made in this regard. It is sufficient to note that for reasons earlier stated I reject that submission.
The chapel
Although I have addressed the submissions directed by Ms McAuley to the elements of the definition of "transitional group home", I have not directly responded to her submissions in relation to the proposed chapel. The purpose of that chapel identified by Adele and the intended restriction of its use to residents participating in the rehabilitation program has earlier been identified by me. As it happened, that restriction was secured by Condition 43 of the Consent.
As I understand her submissions, Ms McAuley makes reference to the chapel for two purposes. First, she submits that its presence is a further indication that the use of the proposed building or buildings is not as a "dwelling". Secondly, it is submitted that the chapel cannot be regarded as a component of or ancillary to the "transitional home purpose".
I do not agree with either submission. While the provision of a private chapel may not be a usual element of a dwelling, the erection and use of a stand-alone chapel on private property for use by the occupants of that property, particularly a rural property, is not unknown.
A further response to this aspect of the submission lies in what I have earlier indicated to be the institutional nature of the occupation of the facility that qualifies as a "transitional group home". If, as I have determined it to be, the group home is itself to form part of the process of providing rehabilitation for people suffering some disorder, be it physical or social, it is readily conceivable that a place providing for quiet reflection, contemplation and meditation is seen to be an aspect of rehabilitation.
The latter observation is also relevant to the submission made on behalf of the third and fourth respondents that the chapel would, for that reason, be considered as ancillary to the conduct of the transitional group home and, for planning purposes, assume that same characterisation despite its designation as a chapel. The purpose which it serves is that of the "transitional group home" (Chamwell Pty Ltd v Strathfield Council at [27] and [34]; Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305 at 310).
Ancillary development
Ms McAuley contends that the use of the two dwellings intended to be erected within the staff accommodation precinct are not ancillary to the "transitional group home purpose". She submits:
(i) they provide accommodation as the family residence of an employee working in a supervisory role and that residence is separated by some distance from the accommodation proposed to be supervised;
(ii) the staff are to service "the rehabilitation facility", not the accommodation alone; and
(iii) the staff dwellings are not "servants' quarters for a dwelling" but accommodation to service "the rehabilitation facility not [the] dwelling."
That submission is, to my mind, misconceived. The second and third elements of the submission focus too narrowly on "individual activities, transactions or processes involved in the operation or proposed operation of the development" rather than a "transitional group home" as defined. At the risk of repetition, the purpose of development is not a dwelling considered in isolation, but rather a "dwelling" constrained by and having the characteristics of the elements which the definition of a "transitional group home" requires. One such element is a capacity to have clients within the "dwelling" supervised. Employment of supervisors is therefore a recognised component of the overall purpose of land use. Leaving aside the somewhat archaic notion of "servants' quarters in a dwelling", staff employed to provide and facilitate services that are a necessary incident of the particular aspects of the "dwelling" needed to satisfy the defined land use serve an analogous function of house staff otherwise employed in a traditional dwelling. So also there can be staff quarters in the form of stand alone dwellings.
Moreover, I do not see the physical separation of the two dwellings involved from the group home precinct to be material. The qualification for occupation of either dwelling is employment in the operation of the group home in all its aspects. That employment involves the supervision of those in the home and undertaking the rehabilitation program that engenders a lawful use of the Property.
The submissions of Ms McAuley did not challenge the desirability of dwelling separation for the reasons explained by Adele. Importantly, the purpose served by provision and occupation of the two dwellings in the staff precinct is a purpose which subserves the purpose of use for a "transitional group home". It is therefore the latter purpose which properly characterises the purpose for which the two staff dwellings are used (Cecil E Mayo Pty Ltd v Sydney City Council (1952) 18 LGR (NSW) 152; Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157; Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 at 409).
In summary, the two dwellings intended to be occupied by employees supervising residents of the "transitional group home" are ancillary to the latter purpose of use. They are to be so categorised for planning purposes.
Clause 18 of the LEP: multiple dwellings
As I have earlier indicated, Mr Berveling submits that subclauses (6) and (7) of cl 18 of the LEP operate to prohibit the erection of an additional dwelling upon the Property. He made clear that this submission is directed to the two staff dwellings located within the staff precinct. The prohibition expressed in subclause (6) proscribes the erection of a dwelling-house subject to the constraints there set out, one of which is a limitation on the area of the allotment upon which the dwelling-house is proposed. The minimum allotment area that is applicable to the Property is 40 hectares. As I have earlier indicated, the Property has an area of almost 96 hectares. The thrust of the submission seems to be that no additional dwellings are permissible as there is already one dwelling on the Property which comprises a single allotment and as a consequence no second dwelling is permissible.
There are two responses advanced by the third and fourth respondents to this submission. First, it is submitted that on the proper interpretation of subclauses (6) and (7) of cl 18, the restriction imposed applies to dwelling-houses as a purpose of land use in accordance with the definition of that expression as it appears in the Dictionary to the LEP. It is defined to mean a dwelling that is the only dwelling on an allotment of land. Relevantly, the purpose for which the Adele development was sought and for which the Consent was granted was for a "transitional group home". As I have already held, the purpose for which the staff dwellings are to be erected and used assumes the planning purpose of the "transitional group home". For this reason, I agree in the submissions made by the respondents.
Even if those submissions and my acceptance of them is incorrect, there is a further basis upon which the contention of Ms McAuley should be rejected.
I have already indicated that the development proposed by Adele is permissible under the provisions of the Affordable Housing SEPP. Consequently, all of the elements that I have identified as forming part of or that are ancillary to the "transitional group home" are permissible in accordance with that instrument. If the submission made by Ms McAuley as to the operation of cl 18 is correct, it would have the effect of prohibiting the "transitional group home" as proposed. In that circumstance there would be an inconsistency between that clause of the LEP and the Affordable Housing SEPP. By cl 8 of the State Policy, its provisions prevail to the extent of inconsistency. The consequence would therefore be that the claimed proscription said to arise by operation of cl 18 would not operate to prevent the grant of consent to the development proposed.
Alternate source of power
As I have earlier recorded, Ms McAuley focused her written submissions as to the correct characterisation of the proposed development by reference to the provisions of the LEP. In their reply submissions, the third and fourth respondents also focussed upon the LEP although they also contended that the Affordable Housing SEPP provided an alternate source of power for the grant of the Consent.
It was ultimately accepted by all parties that in granting the Consent, the JRPP was alerted to and is assumed to have focused upon the provisions of the Affordable Housing SEPP when assessing the application and determining to grant consent. As will be apparent from these reasons, nothing of relevance to the argument advanced by Ms McAuley turned upon any difference of expression between the two planning instruments when characterising the development.
However, to the extent that the JRPP is said to have made its determination solely by reference to the LEP and that it was legally incorrect in so doing, the respondents contend that the decision can be supported by the provisions of the Affordable Housing SEPP as an alternate source of power that was available at the time at which consent was granted (Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 at 85 - 86). In his oral submissions, I did not understand Mr Berveling to contest that contention. I accept the respondents' submission.
Conclusion and orders
For the reasons expressed, I am satisfied that the development proposed by Adele and for which the JRPP granted the Consent, was development properly categorised as a "transitional group home" within the meaning of both the Affordable Housing SEPP and the LEP. The provision of temporary residential accommodation on the Property to be used for rehabilitation of drug and alcohol dependent men in the manner identified in the development application and the supporting material to which I have referred, satisfies the requirement of use for that purpose. As a consequence, the Consent was validly granted.
For these reasons, the summons will be dismissed.
I have not heard submissions as to costs. As Ms McAuley has been unsuccessful in prosecuting these proceedings, the ordinary consequence would be that costs are awarded in favour of the successful party (Civil Procedure Act 2005, s 98; Pt 42, r 42.1 of the Uniform Civil Procedure Rules 2005). While expressing no concluded view on the issue, I can conceive of a debate as to whether costs should be awarded in favour of both the third and the fourth respondents, the first and second respondents having filed submitting appearances. For that reason, I will reserve the question of costs.
In the event that an order for costs cannot be agreed, I propose to direct that any party seeking an order for costs provide to my Associate within 14 days and to the other parties within that same time, a short written outline of submissions supporting the application. Any party opposing that order, must, in turn, file a short written submission in reply within 14 days thereafter. Each party filing a submission is required to indicate whether they require the matter to be listed for oral argument.
Orders
The orders that I make are as follows:
1. Summons dismissed.
2. Costs reserved.
3. Direct that any party seeking an order for costs provide to my Associate within 14 days and to the other parties within that same time a short written outline of submissions in support of the order sought.
4. Direct that any party opposing an application made in accordance with order 3 provide to my Associate within a further 14 days and to the other parties within the same time a short written submission by way of response.
5. Any party seeking to address the Court orally in support of a submission filed in accordance with orders 3 or 4 must so indicate in their written submission.
6. Exhibits may be returned.
**********
Decision last updated: 05 August 2013
7
10
6