The Trustee for the HTV Accessible Housing Trust (NDIS)
[2025] ARTA 281
•28 March 2025
The Trustee for the HTV Accessible Housing Trust (NDIS) [2025] ARTA 281 (28 March 2025)
and Compass Housing Services Limited
Applicants:The Trustee for the HTV Accessible Housing Trust
and Compass Housing Services Limited
Respondent: National Disability Insurance Agency
Tribunal Numbers: 2023/6120 and 2023/6121
Tribunal:General Member J Toohey
Place:Brisbane
Date:28 March 2025
Decisions:1. The decision under review in matter number 2023/6120 is set aside and remitted with the direction that unit 2 is enrolled as an SDA dwelling with the building type ‘villa, duplex or townhouse’.
2. The decision under review in matter number 2023/6121 is set aside and remitted with the direction that unit 2 is enrolled as an SDA dwelling with the building type ‘villa, duplex or townhouse’.
3. For both matters 2023/6120 and 2023/6121, any remaining issues that require classification as part of the SDA enrolment process are to be decided by the Respondent.
.............................................
General Member J Toohey
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – Specialist Disability Accommodation – Enrolment of SDA Dwelling – Building Type – SDA Rules – Apartment – Villa, duplex or townhouse – Interaction with Building Code – Meaning of ‘typically built above or below another dwelling’ – Meaning of ‘separated from other dwellings by walls alone’ – Decision set aside – Dwellings to be enrolled as ‘villa, duplex or townhouse’
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020
Cases
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
National Disability Insurance Agency v Davis [2022] FCA 1002Secondary Materials
Explanatory Statement: National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020
National Construction Code 2022: Volume One - Building Code of Australia
National Disability Insurance Scheme Bill 2012, Second Reading Speech
NDIA Specialist Disability Accommodation Limited Cost Assumptions Review Final Report, October 2019
NDIA Specialist Disability Accommodation Price Guide 2024-25, Version 2.0, 1 October 2024
NDIA Specialist Disability Accommodation (SDA) Design Standard Implementation Plan, 31 October 2019NDIS Specialist Disability Accommodation Design Standard, Edition 1.1, 25 October 2019
Statement of Reasons
SUMMARY
The Tribunal has decided to set aside and remit the decisions of the Agency with directions that unit 2/1 and unit 2/3 be enrolled as SDA Dwellings with the Building Type ‘villa, duplex or townhouse’.
As part of the SDA Dwelling enrolment process, there are other matters that require classification, including the design category, fire sprinklers, GST input tax credits and location factors. Such matters remain for the Agency to determine on remittal.
This decision is made under section 105 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act). The reasons for this decision are as set out below.
INTRODUCTION
The Applicants are registered Specialist Disability Accommodation (SDA) providers under the National Disability Insurance Scheme Act 2013 (NDIS Act). The Applicants developed two SDA properties at numbers 1 and 3 ‘B’ street in Brisbane.[1] Each development included two units on the ground floor which were designed to meet the ‘high physical support’ design category. On the first floor of each development, an area was constructed for use by support workers providing Onsite Overnight Assistance (OOA).
[1] While the Applicants have not sought any confidentiality orders in these proceedings, for the privacy of the individuals involved, I have opted not to publish the specific addresses or names of individuals residing at these addresses.
On 10 February 2023, a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (Agency) decided not to enrol one unit at each of Applicants’ properties as dwellings at which SDA can be provided, under rule 26 of the National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (SDA Rules). Units 1/1 and 1/3 B Street were enrolled as ‘Building Type – Apartments’. Units 2/1 and 2/3 B Street were not enrolled as SDA dwellings. The OOA did not require a specific enrolment.
The Trustee for the HTV Accessible Housing Trust (trading as SDA Services) is the Applicant in matter number 2023/6120 which concerns the enrolment of unit 2/1 B Street. Compass Housing Services Limited (trading as Home in Place) is the Applicant in matter number 2023/6121 which concerns the enrolment of unit 2/3 B Street.
On 9 May 2023, the Applicants applied for internal review of the CEO’s decisions. The Agency did not complete an internal review decision with 90 days of this request. Under section 100(6A) of the NDIS Act, the Agency was deemed to have affirmed the decisions not to enrol the units. On 21 August 2023, the Applicants applied to the Administrative Appeals Tribunal (AAT) for review of the Respondent’s deemed decisions. The Tribunal’s jurisdiction to consider these deemed decisions under section 25(5) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) was confirmed by SM Parker in an interlocutory decision on 15 September 2023. In this interlocutory decision, SM Parker also considered that it was appropriate for the two matters to ‘travel together’ at the Tribunal.
For context, there are shared family interests behind the SDA provider entities. MK owns the property at number 1 B Street. MK is an NDIS participant with SDA approved in her plan who resides in unit 1/1 B Street. AK is MK’s mother. AK resides in unit 2/1 B Street. MK and AK are directors of the entity which owns 3 B Street. The Applicants are separate legal entities. They were represented by the same solicitors and counsel at the hearing. The matters were heard together with a shared hearing bundle and witnesses provided evidence relating to both matters. I have combined both matters in these reasons. The factual and legal framework in both matters is the same in most respects. Where the considerations are different between the Applications, I have addressed these differences below.
The hearing was held by video on 27 and 28 February 2025. The Applicants were represented by Peter O’Farrell KC, with junior counsel Tom Ellicott and Matt Black, instructed by Draddy Legal. The Agency was represented by Peter Hanks KC, with junior counsel Phil Nolan, instructed by Mill Oakley Lawyers.
ISSUE
In their Amended Statement of Facts, Issues and Contentions, dated 24 January 2025, the Agency contends units 2/1 and 2/3 B Street can be enrolled as SDA dwellings, but as a building type ‘villa, duplex and townhouse’. Prior to this, the additional issue before the Tribunal had been whether these units should be enrolled as any type of SDA dwelling. At the hearing, the Applicants confirmed that they continued to seek enrolment of units 2/1 and 2/3 B Street as SDA dwellings with the building type ‘apartment’. In the alternative, if the Tribunal was not satisfied that the units should be enrolled as apartments, then the Applicants seek enrolment as ‘villa, duplex and townhouse.’
The issue before the Tribunal is whether the units at 2/1 and 2/3 B Street should be enrolled with the building type ‘apartment’ or ‘villa, duplex and townhouse’.
TRANSITION TO THE ADMINISTRATIVE REVIEW TRIBUNAL[2]
[2] The following paragraph is approved for use in all Tribunal decisions.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
OVERVIEW OF THE NDIS SDA DECISION-MAKING FRAMEWORK
Chapter 1, Part 2 of the NDIS Act sets the objects and principles, including, for example, that the NDIS Act is to facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with a disability,[3] and that decision-makers are to have regard to the need to ensure the financial sustainability of the scheme.[4]
[3] Section 3(1)(f).
[4] Section 3(3)(b).
Section 209 of the NDIS Act allows the Minister to make rules which are necessary or convenient to give effect to the Act. The SDA Rules are made under this section. Section 5 of the SDA Rules have several relevant definitions, such as:
(a)Building Code of Australia means the publication known as the Building Code of Australia, published by the Australian Building Codes Board, as in force from time to time;
(b)SDA building type means a type of building set out in Schedule 1; and
(c)the SDA Price Guide means the publication known as the National Disability Insurance Scheme Price Guide for Specialist Disability Accommodation published by the CEO, as in force from time to time.
Part 3, Division 2 of the SDA Rules deals with the requirements for the funding of SDA. Rule 24(1)(b) says that accommodation must be provided at a dwelling that is enrolled to provide SDA under Division 3. Rule 25 of Division 3 requires that an SDA provider must apply to enrol a dwelling as a dwelling at which SDA can be provided.
Rule 25(3) sets out the information that must be provided with this application, including Rule 25(3)(a) which requires the SDA building type and location of the dwelling to be stated.
Rule 25(4) deals with certification, including Rule 25(4)(d) that the dwelling meets all relevant building codes, standards and laws that are applicable to the dwelling.
Rule 26 deals with enrolment of dwellings and states that:
(1)If an SDA provider makes an application under section 25, the CEO must decide whether to enrol the dwelling as a dwelling at which specialist disability accommodation can be provided.
(2)The CEO must not enrol the dwelling unless the CEO is satisfied that:
(a)the applicant has certified the matters required by subsection 25(4); and
(b)the applicant has given any further information or documents required by the CEO under subsection 25(5);
…
(3)A decision by the CEO not to enrol a dwelling is a reviewable decision, and the decision-maker in respect of the decision is the CEO.
Section 99(2) of NDIS Act allows for rules to prescribe whether a decision is reviewable by the Tribunal. Rule 26(3) of the SDA Rules means that a decision by the CEO not to enrol a dwelling is a reviewable decision.
Schedule 1 of the SDA Rules is a table which ‘sets out the building types that are SDA building types and the features and Building Code of Australia classification for each building type’ as below:
SDA building types
Item Building type Features Building Code of Australia classification 1
Apartment
The features of an apartment are:
(a) it is self-contained occupying only part of a larger residential building; and
(b) it is typically built above or below another dwelling.
A self-contained dwelling that is separated from other dwellings by walls alone is not an apartment but is likely to be a villa, duplex or townhouse.
Class 2
2
Villa, duplex and townhouse
The features of a villa, duplex or townhouse are as follows:
(a) it has 3 or less residents;
(b) it is a semi-attached property within a single land title or strata titled area;
(c) it is separated from other villas, duplexes or townhouses by a fire-resistant wall (not required for existing stock);
(d) it has a separate and reasonably accessible entry;
(e) the residents are not able to internally travel between dwellings (restricted internal access between dwellings may exist for support staff only);
(f) it may be an ancillary dwelling that is located on the same parcel of land as another dwelling (e.g. a fully self-contained granny flat).
Class 1a or 3
NDIS Operational Guidelines also assist in making decisions in accordance with the NDIS Act. Operational guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[5] One applicable guideline is the SDA Price Guide,[6] which differentiates the price payable for SDA Dwellings depending on the building type, design category and other factors. Another applicable guideline is the SDA Design Standard,[7] which sets out the detailed design requirements to be incorporated into newly built SDA.
[5] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
[6] NDIA Specialist Disability Accommodation Price Guide 2024-25, Version 2.0, 1 October 2024.
[7] NDIS Specialist Disability Accommodation Design Standard, Edition 1.1, 25 October 2019.
SUMMARY OF EVIDENCE
The Tribunal was provided with a joint hearing bundle by the parties, and this was accepted into evidence at the hearing.[8] This large bundle of documents (1414 pages) included:
(a)The ‘T-documents’ and supplementary T-documents;[9]
(b)A statement from AK; and
(c)Reports from building certifiers Mr Scott Mars and Mr Michael Moran.
[8] The document numbering in the hearing bundle index is adopted throughout these reasons.
[9] Which are all the records that the Agency considered when making the decision under review as required by section 37 of the AAT Act.
During the hearing, the Tribunal also accepted four additional exhibits, being:
(a)A Bundle of Authorities, Volume 1, received as exhibit A1;
(b)A Bundle of Authorities, Volume 2, received as exhibit A2;
(c)A building plan for 1 B Street, received as exhibit A3; and
(d)A building plan for 3 B Street, received as exhibit A4.
The Tribunal also had the benefit of receiving written submissions from the parties and oral evidence from Mr Mars and Mr Moran. AK and Mr Bryce Tolliday, accredited SDA assessor, were also made available by the Applicants to provide oral evidence. The Agency did not require these witnesses to provide evidence at the hearing.
SUMMARY OF SUBMISSIONS
The Applicants submit that unit 2/1 and 2/3 B Street should be enrolled as ‘apartments’ as they are:
(a)self-contained, occupying only part of a larger residential building;
(b)built below another dwelling (being the OOA unit); and
(c)not separated from other dwellings by walls alone.
Alternatively, the Applicants submit that units 2/1 and 2/3 B Street should be enrolled as ‘apartments’ as:
(a)the preconditions for enrolment in rule 26(2) of the SDA Rules have been satisfied;
(b)rule 26 requires an enrolment to specify the building type; and
(c)rules 25 and 26 provide for assessment by accredited assessors such that, once the preconditions in rule 26(2) are satisfied, the decision-maker’s task is to enrol the dwelling with the category as assessed.
Further, if the units are not enrolled as ‘apartments’, the Applicants submit that the units should be enrolled as building type ‘villa, duplex and townhouse’.
The Agency submits that units 2/1 and 2/3 B Street cannot be enrolled as ‘apartments’ as:
(a)they were classified under the Building Code of Australia as ‘Class 3’ and apartments are generally ‘Class 2’;
(b)they are not built under a dwelling, as the OOA unit is not a dwelling; or
(c)if the OOA is a dwelling, only unit 1 of each property is below the OOA, and
(d)they are separated from other dwellings by walls alone.
The Agency contends that units 2 in both buildings have the features of a ‘villa, duplex and townhouse’ and it would be open to the Tribunal to enrol each unit accordingly.
The Agency accepts that the preconditions for enrolment in rule 26(2) have been satisfied but submits that the Tribunal must still make a decision on whether to enrol the units. The Agency also agree that rule 26 authorises or requires enrolment of a dwelling with a specified SDA building type.
The Agency disagrees with the Applicants’ contention that the CEO (and Tribunal) is constrained to enrol the dwelling based on the building type nominated by the accredited assessor. The Agency submits that the decision-maker must independently form a state of satisfaction about the ‘SDA building type’ of the relevant dwelling.
CONSIDERATION
Are the units ‘apartment’ building types?
No, units 2/1 and 2/3 B Street are not ‘apartment’ building types as required by the SDA Rules. The units do not have the features of an ‘apartment’ under Schedule 1 of the SDA Rules.
There is no dispute that the units are ‘self-contained occupying only part of a larger residential building’ as described in Schedule 1, Item 1(a) of the SDA Rules. I am satisfied this is correct.
The parties disagree about most aspects of the meaning and application of ‘typically built above or below another dwelling’ in Schedule 1, Item 1(b) of the SDA Rules.
The Agency relies on the definition of ‘typical’ in the Macquarie Encyclopaedic Dictionary[10] to submit that ‘typically’ means ‘conforming to the type’. I don’t think this particularly assists in understanding the meaning of the word ‘typically’ here. Inserting this definition provides a phrase ‘conforming to the type built above or below another dwelling’ which does not aid interpretation. The Applicants say ‘typically’ should be read as a qualifier to the phrase built above or below another dwelling which allows for atypical situations. I agree with the Applicants. I consider the ordinary meaning if the word ‘typically’ in this context is ‘in most cases’ of ‘usually’. I note this is consistent with definition offered in the Oxford Dictionaries Online.[11]
[10] (2011 Signature Edition).
[11] “typically”. Oxford Dictionaries. Oxford University Press, n.d. Web. 06 March 2025. Via Oxford Dictionaries Online. <>
The parties also disagree about the meaning of ‘built above or below another dwelling’. The Agency submits that ‘built above or below another dwelling’ means physically over. The Agency refers to Figure 4 of the Building Code of Australia[12] (BCA) showing a Class 2 Building with Class 2 Dwellings ‘located one above the other’.[13] I note that the heading to Figure 4 says that it is a ‘typical configuration’. The Agency also submits that Figure 5 in the same part of the BCA is not relevant. Figure 5 depicts three adjacent Class 2 dwellings which are above a common area. The figure is preceded by the text ‘Where there is any common space below such dwellings, they are Class 2 (and cannot be Class 1) irrespective of whether the space below is a storey or not’.
[12] Australian Building Codes Board National Construction Code 2022: Volume One - Building Code of Australia Class 2 to 9 buildings < Exhibit A3, page 74.
The parties agree that the reference to the BCA classification in Column 4 of the Schedule 1, Item 1 of the SDA Rules does not determine whether an SDA Dwelling is an ‘apartment’ building type. The Agency submits that the BCA classification assists in understanding the features of an apartment. The Applicants say the BCA classification is not relevant.
It was notable to me that both Mr Mars and Mr Moran agreed with Mr Tolliday’s certification of the 1 and 3 B Street properties as being BCA Class 3 buildings. This is because the BCA takes an approach based on purpose, and buildings which are to be used as accommodation for people with disability are Class 3 Buildings. Based on this, the reference to Class 2 in column 4 of Schedule 1 cannot determine the building type ‘apartment’. If this was the case, no SDA dwelling could be enrolled as an apartment as all SDA dwellings will be Class 3 for the purpose of the BCA.
This does not mean that the reference to Class 2 of the BCA has no work to do. I do not accept the Applicants’ submission in this regard. The SDA Rules expressly refer to the BCA and clearly intend for decision-makers to have regard to this as part of assessing SDA dwellings. However, I also do not entirely agree with the Agency’s approach to applying the BCA.
In my view, the Agency is being somewhat selective as to which parts of the BCA to apply. The interpretation suggested by the Agency is that the BCA is applied where it is consistent with the wording of the ‘features’ column of the Schedule 1 of the SDA Rules but not otherwise. In my view, the BCA informs the interpretation of the features column. The BCA and SDA Rules need to be read together. To the extent that the Agency has submitted that the OOA is not a ‘dwelling’ which is above the units in question, in my view, Figure 5 of the BCA informs the interpretation of Schedule 1 of the SDA Rules such that an SDA Dwelling could be enrolled as an apartment even when it is above or below a space which is not another SDA dwelling.
However, I agree with the Agency that Figure 4 of the BCA informs the interpretation of SDA Rules in a way which supports their contention that ‘above or below’ mean physically above or below. Figure 4 shows a Class 1 Dwelling next to two Class 2 dwellings which are above and below each other. I do not accept the Applicants’ submission that the OOA being on the first floor means that they are above the other units in the building.
From the plans provided as exhibit A3 for 1 B Street, it is clear that the OOA is physically above unit 1/1 B Street which was appropriately enrolled as an apartment. The eves of the OOA are the only part which are above unit 2/1. The Agency was concerned that, if an overhang was considered to be part of a dwelling, then any shade feature could result in a dwelling being considered to be above another, and that this interpretation could be open to manipulation. Having regard to the beneficial nature of the NDIS Act,[14] and that the eves of the OOA are part of the physical structure of the OOA unit, it is possible to conclude that the OOA unit is ‘above’ unit 2/1. However, as below, this does not lead me to consider that unit 2/1 is an apartment.
[14] National Disability Insurance Agency v Davis [2022] FCA 1002, [142].
From the plans provided as exhibit A4 for 3 B Street, it is clear that the OOA unit is physically above unit 1/3 B Street which was appropriately enrolled as an apartment. However, it is also clear that no part of the OOA on 3 B Street is physically above unit 2/3.
The parties also disagree with regards to the meaning and application of the words in the features column of Schedule 1, Item 1 of the SDA Rules which say, ‘A self-contained dwelling that is separated from other dwellings by walls alone is not an apartment but is likely to be a villa, duplex or townhouse.’ The Agency says that units 2/1 and 2/3 B Street are separated from other dwellings by walls alone and therefore cannot be enrolled as ‘apartments’. The Applicants say that the units:
are not separated because of the series of access doors and other shared facilities including:
(a) shared driveway entry to the shared carparking area;
(b) the shared car parking area;
(c) shared OOA;
(d) a stairwell to access the shared OOA;
(e) the shared bin facilities;
(f) central mail box;
(g) shared garden areas;
(h) shared clothes drying area for the residential building at 1 [B] Street;
(i)the shared pathway for access to both the HTV/Compass units leading from the shared carparking area;
(j) shared SDA Housing Provider for each unit on each property.[15]
[15] Applicants’ Amended Statement of Issues, Facts and Contentions pages 16 and 17.
In my view, examining the term ‘separated’ in isolation here is not helpful and considering these aspects of shared facilities offers little by way of understanding whether the units are separated ‘by walls alone’. In addition, the Applicants say that ‘walls, ceilings, floors and a stairway also keep the units apart’. Again, I don’t consider this particularly helpful. I consider that the meaning of ‘separated by walls alone’ needs to be read in the context of the other features in Schedule 1. The meaning of this phrase is informed by the earlier words ‘typically built above or below another dwelling’ and the later words ‘likely to be a villa, duplex or townhouse’. The features of the other building types in Schedule 1 also form part of this context.
The features of a ‘villa, duplex or townhouse’ in Schedule 1 include: Item 2(b) that a villa, duplex or townhouse ‘is a semi-attached property’; and Item 2(c) that they are ‘separated from other villas, duplexes or townhouses by a fire-resistant wall’. Item 3 of Schedule 1 also says that the features of a ‘house’ include that:
(b) it is located on a clearly separate land area (separated by, for example, a fence, hedge or other form of delineation)
(c) it has no shared wall, roof, entry area, driveway, carpark or outdoor area with any other dwelling other than an ancillary villa, townhouse or duplex.
Read together, I consider that the relevant distinguishing features of an ‘apartment’ as compared to ‘villa, townhouse or duplex’ and a ‘house’ in this matter are that they are part of a larger building, are usually built above or below another dwelling, and this means that they will usually be separated by a shared floor/ceiling and not just walls alone. I acknowledge that this is a paraphrasing (and constraining) of the specific wording in Schedule 1. However, this is the meaning of these features as I interpret them in the context in which they are used.
Returning to the plan at exhibit A3 for 1 B Street, it is clear that the OOA unit is separated from unit 1/1 B Street by a wall and a shared floor/ceiling. This unit was correctly enrolled as an apartment. However, unit 2/1 B Street is only separated from the OOA unit by a wall. There is no shared floor/ceiling. Unit 2/1 B Street is not an apartment as it is separated from other dwellings by walls alone.
Looking at the plan at exhibit A4 for 3 B Street, it is also clear that the OOA unit is separated from unit 1/3 B Street by a wall and a shared floor/ceiling, and this was correctly enrolled as an apartment. Unit 2/3 is not physically next to the OOA unit. It is physically next to unit 1/3 and is separated from unit 1/3 by a wall alone. Unit 2/3 B Street cannot be considered an apartment.
Are the units ‘villa, duplex or townhouse’ building types?
Yes, units 2/1 and 2/3 B Street are ‘villa, duplex or townhouse’ building types as required by the SDA rules. The units have the features of a ‘villa, duplex or townhouse’ under Schedule 1 of the SDA rules.
Both parties agree that units 2/1 and 2/3 B Street can be considered ‘villa, duplex or townhouse’ building types. I am satisfied this is the case, particularly with reference to my findings above that these units are not apartments and are ‘likely to be a villa, duplex or townhouse’.
With regards to the feature in Item 2(c) ‘it is separated from other villas, duplexes or townhouses by a fire-resistant wall’ I note that Mr Mars reported that the walls between unit 2/1 B Street and its adjoining unit were fire resisting. Mr Mars had the same opinion for the walls between unit 2/3 B Street.[16] This was put to Mr Moran, who also agreed. Mr Moran did however consider that the wall separating unit 2/1 B Street from the OOA unit might not be considered fire resisting as the masonry did not continue to the underside of the OOA roof. Mr Moran conceded that many building certifiers would not share this opinion. I prefer the opinion of Mr Mars in this regard as it is also consistent with the certification provided by Mr Tolliday.
[16] Page 979 of the joint hearing bundle.
Have the preconditions for enrolment in rule 26(2) been satisfied?
Yes, the preconditions for enrolment have been satisfied. The parties are in agreement on this issue. I have reviewed the material in the joint hearing bundle and am satisfied that the requirements in rule 26(2) have been met. Units 2/1 and 2/3 B Street can be enrolled as SDA dwellings.
Does rule 26 require an enrolment to specify the building type?
Yes, rule 26 requires or authorises a decision-maker to specify a building type. The parties are in agreement on this issue. Rule 25(3) requires the application to specify a building type, and SDA payments are determined under the SDA Price Guide by reference to the building type (and other matters). It is implicit that a decision made under rule 26 to enrol an SDA dwelling would normally specify a building type. Units 2/1 and 2/3 B Street can be enrolled as building type ‘villa, duplex or townhouse’.
Is the decision-maker’s task limited to enrolling the dwelling as assessed by an accredited assessor?
No, while there are sound policy reasons for usually enrolling SDA dwellings on the same basis as was assessed by an accredited assessor, there is still discretion for the decision‑maker not to enrol an SDA dwelling, or to enrol an SDA dwelling on a different basis.
The Applicants referred to several extrinsic materials to demonstrate that the SDA enrolment process is intended to be a two-stage process and that, once provisional enrolment is provided, the final enrolment should be in accordance with the provisional approval, subject to assessment by an accredited SDA assessor. The materials referred to included the:
(a)Specialist Disability Accommodation (SDA) Design Standard Implementation Plan;
(b)Explanatory Statement to the SDA Rules;
(c)National Disability Insurance Scheme Bill 2012, Second Reading Speech;
(d)Specialist Disability Accommodation Limited Cost Assumptions Review Final Report; and
(e)SDA Price Guide.
The Applicants’ reliance on these other materials is quite persuasive. The policy imperatives do appear to relate to improving the availability of SDA housing stock, through stimulating investment, best achieved through providing greater certainty to SDA providers, including by using accredited SDA assessors.
The Applicants submitted that Bryce Tolliday is an accredited SDA assessor who certified that the units complied with the SDA design standard. The Agency does not contest this submission and I am satisfied that this is the case based on the information before me.
However, I am not satisfied that the decision-maker’s discretion is limited in the way suggested by the Applicants. The Applicants point to the Explanatory Statement to the SDA Rules which states that:
Subsection 26(3) recognises that the decision under subsection 26(2) contains a question of judgement for the CEO about which reasonable minds may differ. This subsection therefore prescribes a decision by the CEO not to enrol a dwelling is a reviewable decision. This allows a registered provider to seek review of the CEO’s decision, under Part 6 of Chapter 4 of the Act, as the result of section 99 of the Act.
The Applicants submit that this statement supports their contentions that: it is the decision about the preconditions specified in rule 26(2) which govern the outcome of the enrolment application; and there is not a separate ‘question of judgment’ about the SDA building type. I do not agree that these conclusions flow from the words used in the SDA Rules or the explanatory statement. As the ‘building type’ is one of the matters that needs to be included in the decision to enrol an SDA dwelling, the assessment of the appropriate building type for enrolment of an SDA dwelling is one of the issues on which ‘reasonable minds’ might differ. In my view, this means that the decision-maker could decide not to enrol an SDA dwelling, or choose to enrol an SDA dwelling with a different building type from that which was assessed by an accredited SDA assessor.
On the same basis, I do not accept the Applicants’ contention that a decision not to enrol an SDA dwelling would be a reviewable decision, but that a decision to enrol an SDA dwelling as a different building type would not be a reviewable decision. I agree with the Agency that a decision not to enrol an SDA dwelling with the building type applied for, but to enrol the SDA dwelling with a different building type, is still a decision not to enrol the dwelling (as applied for) and is therefore a reviewable decision.
On balance, while I agree with the Applicants that the assessment framework is intended to provide certainty for SDA providers, I do not consider that this need for certainty rises to the level of concluding that the CEO’s discretion (and the Tribunal on review) is limited to considering whether the preconditions for enrolment have been met and enrolling a dwelling as assessed by an accredited SDA assessor. The CEO retains a discretion to enrol an SDA dwelling as a type other than that nominated by an Applicant with certification from the SDA assessor. I expect that it was intended that this discretion would be used sparingly and in circumstances where the CEO considered that a departure from the assessed building type was appropriately justified. However, this does not lead me to the conclusion sought by the Applicant with regards to the discretion being limited to enrolling the SDA dwelling as assessed. It is appropriate to enrol units 2/1 and 2/3 B Street as SDA dwellings with the building type ‘villa, duplex or townhouse’.
DECISIONS
The decision under review in matter number 2023/6120 is set aside and remitted with the direction that unit 2 is enrolled as an SDA dwelling with the building type ‘villa, duplex or townhouse’.
The decision under review in matter number 2023/6121 is set aside and remitted with the direction that unit 2 is enrolled as an SDA dwelling with the building type ‘villa, duplex or townhouse’.
For both matters 2023/6120 and 2023/6121, any remaining issues that require classification as part of the SDA enrolment process are to be decided by the Respondent.
Dates of hearing: 27 and 28 February 2025 Counsel for the Applicant: Mr P O’Farrell KC, Isaacs Chambers
Mr T Ellicott, Isaacs Chambers
Mr M Black, Quay 11 ChambersSolicitors for the Applicant:
Ms J Draddy, Draddy Legal
Counsel for the Respondent:
Mr P Hanks KC, Owen Dixon Chambers West
Mr P Nolan, Darrow ChambersSolicitors for the Respondent:
Mr D McLaren, Mills Oakley Lawyers
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