Noosa Shire Council v Staley
[2002] QPEC 18
•19 April 2002
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Noosa Shire Council v Staley [2002] QPEC 018
PARTIES:
NOOSA SHIRE COUNCIL Applicant
And
PHILIP ANDREW STALEY,
LINDA PATRICIA STALEY
And
THE BODY CORPORATE
”SUNSHINE BAYS” RespondentsFILE NO/S:
139 of 2002
DIVISION:
Planning & Environment Court
PROCEEDING:
Application
ORIGINATING COURT:
Brisbane
DELIVERED ON:
19 April 2002
DELIVERED AT:
Brisbane
HEARING DATE:
28 February 2002
JUDGE:
Judge McLauchlan QC
ORDER:
Declaration as sought
CATCHWORDS:
COUNSEL:
Mr W Everson for the Applicant
Mr J Houston for the Respondents
SOLICITORS:
Wakefield Sykes for the Applicant
Sykes Pearson & Miller for the Respondents
This is an application for a declaration that the use being made by the Respondents of certain land described as Lots 1-7 and common property on BUP 103648, Parish of Weyba constitutes an Accommodation Building (Hostel) and that such use is an unlawful use being contrary to the provisions of the Town Planning Scheme. A further order is sought restraining the Respondents from continuing to so use the land.
The particulars of the activities alleged to be in breach of the Scheme are stated in paragraph 8 of a letter from the Applicant’s solicitor to the Respondents’ solicitor dated 14 February 2002. The particulars purport to be given in compliance with an order of Judge Quirk, although such an order was not produced. In any case, the parties agree that the contents of paragraph 8 represent particulars of the activities alleged to be in breach, and it follows that the Applicant is confined in its case to those particulars. The particulars specify various matters in sub-paragraphs a. to k., with the exception of c. which reads “the activities fall in ordinary terminology within the description, backpackers’ hostel”. The “activities” referred to in that paragraph, which does not specify a particular, but rather comments upon other particulars, can only be read, in my opinion, as referring to the activities specified in other sub-paragraphs of paragraph 8. Paragraph 8, including sub-paragraphs a. to k. is set out hereunder:
“8.The activities complained of constitute an Accommodation Building, in particular a backpackers’ hostel because:
a.the beds in the rooms are let on a bed basis not on a room basis;
b.the beds in the rooms are let to persons who are unrelated and, in particular, do not fall within the definition of a “family”.
c.the activities fall in ordinary terminology within the description, backpackers’ hostel;
d.unrelated persons arrive inter alia by bus-load and occupy beds which are rented on a bed basis;
e.persons who have rented beds do not have access to all parts of the unit;
f.common recreation, laundry and dining facilities exist which unrelated persons are at liberty to use;
g.the premises are advertised as backpackers’ accommodation including dormitory accommodation;
h.buses, such as OZ-EXPERIENCE which operate backpacker tours, regularly arrive and deposit unrelated persons who occupy beds rented on a per bed basis;
i.the premises are advertised in the telephone directory as backpacker’s accommodation;
j.the unrelated person is provided on arrival with bed linen and a towel for the bed rented and may hire crockery and cutlery for his or her own use;
k.the Respondents maintain a mini bus on site which is used to transfer unrelated persons between the premises and the Noosa Bus Terminal.
The property in question is situated at 14 Duke Street, Sunshine Beach. On 30 January 1973 planning approval was granted by the Applicant to erect 8 flats on the land in question, and it is accepted on both sides that for present purposes, and in terms of the current transitional Planning Scheme, the approved use is for a Multiple Dwelling. The land is included in the residential low density city zone, and multiple dwellings are a column 4 use, that is to say, development to follow an impact assessment process. Following the approval of January 1973, 7, 2-bedroom flats were constructed, and it is conceded that until June 1999, the subject land was used in accordance with the approval granted. However it is contended that since that time the land has been used for an accommodation building as that term is defined in the Scheme. On 16 August 1999 the Applicant Council wrote to the owners (one of the Respondents) and informed them of the Council’s view that the land was being used for the purpose of an accommodation building. They were requested to lodge a development application for a material change of use, or face prosecution. On 18 November 1999, such an application was lodged. Following notification of the application, some 44 submissions were lodged. On 3 March, 2000, the Applicant Council refused the application. On 30 March 2000, a Notice of Appeal was filed, but the appeal was withdrawn on 5 September.
The respondents to the application are Mr and Mrs Staley and the Body Corporate “Sunshine Bays”. Mr and Mrs Staley own all 7 of the units constructed on the site, and the common property is owned by the Body Corporate. The units were purchased by the natural Respondents in about June 1999. Six of the units are 2-bedroom units, the other being a 1-bedroom unit. The 6 2-bedroom units are let out, but the 1-bedroom unit is used as an office and unit for the on-site manager.
Mr Staley deposes to the following further matters concerning the business conducted on the premises at 14 Duke Street –
“5.Each unit contains 2 bedrooms, a kitchen, a lounge/dining room, bathroom and toilet. Each unit is self-contained. In each of the units each bedroom contains beds, the kitchen has a refrigerator, microwave and is stocked with pots and cooking utensils, the lounge/dining room has a table and chairs, lounge, coffee table, cabinet, TV and video. There are no laundry facilities in any of the units but there are laundry facilities on common property and these common laundry facilities have existed since the building was built in about 1970.
6.Facilities erected on the common property, and which all occupants of the units are entitled to use, include a barbecue area incorporating tables and chairs, the laundry facility, carports, a large garden and courtyard area in which chairs have been placed, the reception area in which at various times there has been a pool table or table tennis table and computer. We have attempted to make the common property into an inviting and attractive area in which occupants of the units can relax.
7.There are no separate dining facilities on the common property as each unit has its own kitchen, table and chairs but there are tables and chairs in the outdoor barbecue area on the common property, as is common in unit complexes.
8.My wife and I purchased each of the 7 units in about June, 1999. Prior to us purchasing the units they were mainly being let by the then owners, usually on a short term basis. The units are situated in close proximity to Sunshine Beach and are ideal for holiday letting however the units are now somewhat old having been erected in about 1970. The units, whilst clean and tidy, are suitable for what I would describe as budget accommodation.
10.After purchasing the units we spent considerable time and money in renovating the units and property generally. We then started to let the units. Being at the cheaper end of the unit market in Noosa we attracted the budget conscious traveller and, in particular, young persons travelling around Australia with their backpacks (commonly referred to as “backpackers”). This backpacker trade increased and we started to concentrate more on that aspect of the market but continued to, and still do, take bookings for persons other than backpackers.
11.The letting by us of a unit to a group of young persons generally described as backpackers normally operates as follows. The person/s requiring accommodation would either make a booking direct with us or through a booking agent generally in Sydney or Cairns. They are usually travelling by bus and are collected by us from the bus depot in our courtesy bus and brought to the units. They are allocated to a unit and then go to that unit and select a bed in the unit. They then occupy the unit for the night. Often a number of persons in the group will know one another and may ask to be allocated to the same unit (which we do). Other times the person arriving does not know the other person/s allocated to their unit until meeting the person/s at the unit.
12.The tariff for the unit is determined by the number of people who occupy the unit.
13.Each person occupying a unit has access to all other parts of the unit and, in particular, has full access to all facilities provided in the unit.
14.Occupants of one unit do not have a right to access any other unit.
15.Before occupying a unit a person is given their linen and, in addition to paying the tariff, is required to pay a deposit for their key which is refunded on return of the key and their linen. Crockery and cutlery for use in the kitchen is included in the tariff and is available on payment of a deposit which is refunded on return of these goods. This method of dealing with the linen, crockery and cutlery is adopted to ensure goods do not go missing.
16.Those occupying the units are entitled to use the facilities on the common property.
17.There is no denying we offer accommodation to backpackers and backpackers are now an important part of our business. We are listed in the Yellow Pages of the telephone directory under the entries for “Backpackers Accommodation”. But that is not to say our premises are a hostel or are being operated as a hostel because they are not.
18.Hostel accommodation is prevalent in the backpackers’ trade because it delivers accommodation at a very cheap price. Hostel accommodation consists of several large rooms where dormitory accommodation is provided and/or numerous smaller rooms which are not self-contained. There are common kitchen, toilet and bathroom facilities for use by all. We do not offer this type of accommodation. Each of our units is fully self-contained and each contains their own kitchen, toilet and bathroom for use by all in the unit and there are no common kitchen, toilet or bathroom facilities for use by all in the building.
19.Guests in our units are prepared to, and do, share the unit with others prepared to share the unit with them and the tariff is determined on a per head basis (this also being the case at a backpackers’ hostel) but I do not believe that turns our units into a hostel just as a hostel is not turned into a dwelling unit simply because some of the activities in the hostel are ordinarily undertaken in a dwelling unit.
20.Whilst the tariff is sometimes spoken of in terms of “the cost of a bed” or “buying a bed” (these being common backpacker terms), those occupying the unit receive more than a bed. They are entitled to the full use of all the facilities in the unit.
21.I usually advertise the premises as “budget accommodation” and include a statement that we are offering self-contained units. Both these statements appear on our brochure. We like to emphasise the units are self-contained because we believe that makes them more attractive than “hostel” accommodation. The expression “budget accommodation” appears on the sign at the premises and on our courtesy bus and the word “hostel” does not appear.
22.Because people often associate backpackers with hostels and dormitory style accommodation, and as we have backpackers staying with us, it is not uncommon for others to refer to our premises as a backpackers’ hostel or dormitory, but we attempt to avoid using those expressions.
23.In advertising in the Yellow Pages under the backpackers’ accommodation listing, I believe we are not thereby implying we are a hostel or offering dormitory accommodation. Rather, I believe what it infers is that we are offering accommodation which is suitable for backpackers, that is, budget priced accommodation where backpackers are welcome and can share accommodation.
24.Since commencing letting units to backpackers, the Applicant has complained that the premises are being used as a backpackers’ hostel and has demanded we obtain approval to use the premises as an Accommodation Building (Hostel). I have always maintained we are not a hostel and do not need approval as an Accommodation Building (Hostel) but following the Applicant’s issue of a Show Cause Notice in August, 1999 requiring us to submit an application for an accommodation building, failing which the Applicant would prosecute us, we lodged an application for such approval. These threats were made in the Applicant’s letter dated 16 August, 1999 and the Applicant’s Show Cause Notice dated 14 October, 1999, copies of which are annexed as exhibits D and E to the affidavit of Shane Michael Adamson sworn 9 January, 2002.
25.I lodged this application despite my belief that such an application was unnecessary. That application was rejected and I subsequently lodged an appeal but later withdrew that appeal.
26.At no time have I acknowledged that the activities carried on by us are unlawful. At all times I believed our activities to be lawful. I have constantly told the Applicant’s representatives that our activities are lawful and I have refused to discontinue the activities. Others may have expressed the view that our activities are unlawful but that is not my view and never has been.
27.The number of beds and style of beds in the bedrooms of each unit varies from time to time. Usually, there is a double bed in one bedroom of the unit and two double bunks in the other bedroom of the unit. The units are usually occupied by not more than 6 persons. Occasionally, the double bed is replaced with two double bunks and then the unit is not occupied by more than 8 persons. Beds are restricted to the bedrooms.
28.We do have a courtesy mini-bus which is operated for the convenience of occupants of the units and this includes a run to the bus terminal. This is not uncommon in unit complexes in Noosa. Our guests do not have their own transport and the bus is widely used by the guests.”
Parts of Mr Staley’s affidavit, including parts of paragraphs 18 and 19 are plainly objectionable as swearing to the issue, and other parts, such as those deposing to his beliefs about certain matters are as plainly irrelevant, but the affidavit does helpfully set out important factual details
The question to be answered is, then, whether or not the current use of the premises by the Respondents falls within the expression “accommodation building” as defined in the Applicant’s transitional Planning Scheme. The term is defined in the schedule to the Scheme as follows:-
“Any premises used or intended for use for two or more accommodation units and which provides common facilities. The term includes a boarding house, guesthouse, hostel, motel or serviced rooms, but does not include bed and breakfast accommodation.”
“Accommodation Unit” is defined as:-
“Part of a building used or intended to be used as a dwelling place for the exclusive use of one family, but which is not a dwelling unit due to the absence of kitchen and ablution facilities.”
The expressions “family” and “dwelling unit” are also defined in the following terms:-
“Family- “any one person maintaining a household or a group of persons living together and maintaining a common household such that all members of the group have access to all parts of the accommodation unit or dwelling unit occupied by the group.”
Dwelling Unit - “A building or part of a building used or intended for use as a self-contained dwelling place for the exclusive use of one family.”
It is contended by the Respondents that the premises cannot be seen as an accommodation building because that expression applies only to accommodation units in conjunction with the provision of common facilities. Both an accommodation unit and a dwelling unit are defined as dwelling places for the exclusive use of one family, but a dwelling unit is a “self-contained” dwelling place, and is excluded from the definition of an accommodation unit, which requires that there be an absence of kitchen and ablution facilities. It is clear that the units under consideration are self-contained in the sense contemplated by the Scheme in these respective provisions. The Applicant contends that regard can be had to an adjoining property on which the Respondents also carry on the business of providing accommodation, on the basis that the one business is operated on both properties. The point of the submission is that the accommodation in the adjoining property is not self-contained, and hence is not excluded from the definition of an accommodation unit. In my opinion the only question which falls for consideration is whether the premises in question, those at Duke Street, are being used as an accommodation building, and not whether other premises are being so used in the course of the business being conducted, in the sense of being managed, at the Duke Street premises. But in any event, this allegation is not included in the particulars of the activities complained of by the Applicant, and the Applicant’s case is confined by those particulars, so it is not necessary to determine the point.
The salient features of an accommodation unit are that the accommodation is not self-contained, and that it is used or intended to be used as a “dwelling place” for the exclusive use of one family, which is one person maintaining a household, or a group of persons maintaining a common household. A dwelling place, which is not defined, might include a transient arrangement such as backpackers’ accommodation, but in my view a household has a significantly different connotation, with implications of domesticity and permanence (see Bedford v Bedford 16 ALR 157). In Kingsland v McIndoe (1989)VR273 Gobbo J stated, at page 276:-
“There is a series of English cases dealing with the question whether or not multiple occupants of the house can be said to form “a single household” for the purposes of the Housing Act. May J in London Borough of Hackney v Ezedinma (1981) 3 or ER 438 stated, at 441, that “premises comprising a number of separate rooms let singly …. Cannot be said to form a single household”.
In Simmons v Pizzey (1979) AC37, Lord Hailsham considered the Oxford dictionary and the “Words and Phrases” definitions of the term “household” and concluded, at 59; “I do not find any of these references particularly helpful except to make clear to me what I would have supposed in any case, that both the expression “household” and membership of it is a question of fact and degree, there being no certain indicia the presence of absence of any of which is by itself conclusive.”
The Court held in Simmons’ case that a refuge for battered wives and children did not constitute a single household by reason of the size, the fluctuating character of the inmates, and the temporary nature of the accommodation.
Similarly, in Silbers v Southwark London Borough Council (1977) 76 LGR 41, a hostel which accommodated some permanent residents was held not to constitute a single household since there was no common organisation of any kind.”
It follows, in my opinion, that the accommodation provided by the Respondents cannot be regarded as accommodation units for the purposes of the definition of “accommodation building”, because they are not dwelling places for the exclusive use of one family, and because they contain kitchen and ablution facilities. However, the Respondents’ submission ignores the second sentence of the definition of “accommodation building”. The Applicant’s submission is that the definition includes a hostel, no reliance being placed upon any other type of accommodation referred to in that sentence. “Hostel accommodation” in a general sense may be thought to satisfy part of the definition of an accommodation unit, in the planning scheme, because it is ordinarily not self-contained, but it fails to satisfy the other criterion in that it could not in my view be regarded as constituting a “household” for one or more persons. The argument for the Respondents would seem to be that only a “hostel” which meets both criteria of an accommodation unit would satisfy the definition of an accommodation building but it is clear, in my opinion, and demonstrably so by reason of the type of accommodation referred to in the second sentence of the definition, that it was the intention that the term “accommodation building” should apply not only to premises used for accommodation units, as defined, but also to (inter alia) a hostel, an expression that is nowhere defined in the Planning Scheme. The intention being clear, in my view, the inelegance of the definition is no bar to a construction of it to include a “hostel” in the ordinary meaning of that term.
It is therefore necessary to turn to the question whether the accommodation provided by the Respondents at 14 Duke Street amounts to the provision of hostel accommodation, so that the building can be described as a “hostel”. One definition of a hostel has been provided by Mr Staley in his affidavit. According to his description, it seems that the defining characteristic is that the accommodation provided, whether in dormitories or in smaller rooms is not self-contained, but that instead there are common kitchen, toilet and bathroom facilities for use by all. In the present case, as he says, each of the units is fully self-contained, each containing its own kitchen, toilet and bathroom for use by all in the unit, and there are no common kitchen, toilet and bathroom facilities for use by all in the building.
The shorter Oxford dictionary defines a hostel as a “house of residence for students”, but the use of the term appears to be wider in this country. The Macquarie dictionary provides the definition – “a supervised place of accommodation, usually supplying board and lodging, provided at a comparatively low cost, as one for students, nurses, or the like.” The judgment of Reynolds, J.A., in South Sydney Municipal Council v James (1977) 35 LGRA 432 at 440 indicates that the exercise in a case of this kind, is to decide which category of residential building in a planning Scheme most appropriately describes the accommodation being considered, where that accommodation can reasonably be regarded as coming within at least one of those categories rather than to attempt a precise definition of a particular residential use, where such a definition is not provided by the relevant Planning Scheme, and to then determine whether or not the accommodation meets the precise requirements of that definition: See also, Franceschini v MMBW (1980) 57 LGRA 285, and City of Springvale v Heda Nominees Pty Ltd (1982) 57 LGRA 298. This seems obviously sensible, since a search for a precise definition will usually be in vain. For example, the Brisbane “Yellow Pages” for 2002 uses the term “hostel” in connection with backpackers, and in a number of other ways. There is no reason to suppose that Mr Staley’s view to the effect that there can be no degree of private usage of facilities in a hostel is correct, rather than the view that the term “hostel” implies a degree of sharing of facilities with others, which, in my opinion, would sufficiently meet the implication of budget or low cost accommodation associated with a hostel. In ordinary usage I think that a “hostel” implies budget accommodation involving shared sleeping arrangements and shared toilet and ablution facilities between people who are unrelated and who cannot be regarded as constituting a household. A hostel in the Applicant’s Planning Scheme is a sub-category of “accommodation building”, being a category of residential accommodation or use contained in the Scheme, and in my opinion it is the use which generally describes and most appropriately describes the use in fact being made of the subject premises.
I conclude that the premises at 14 Duke Street, Sunshine Beach constitute an accommodation building in terms of the Applicant’s Planning Scheme, as comprising a “hostel”. Such a use is an unlawful use of the premises, and the Applicant is entitled to a declaration to that effect, and to the restraining order sought.
I declare that the use being made by the Respondents of Lots 1-7 and common property on BUP 103648, Parish of Weyba constitutes an accommodation building contrary to the provisions of the Town Planning Scheme, and is unlawful. I will hear submissions from Counsel as to the precise terms of the restraining order, if it is necessary to make one.
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