WEST AUSTRALIAN SHALOM GROUP INC. and CITY OF SWAN - [2018] WASAT 36

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   WEST AUSTRALIAN SHALOM GROUP INC. and CITY OF SWAN [2018] WASAT 36
MEMBER:   DEPUTY PRESIDENT, JUDGE PARRY
HEARD:   27 AND 28 MARCH 2018
DELIVERED          :   25 MAY 2018
FILE NO/S:   DR 299 of 2015
BETWEEN:   WEST AUSTRALIAN SHALOM GROUP INC.
Applicant
AND
CITY OF SWAN
Respondent

Catchwords:

Town planning - Development application - Preliminary issue - Land use classification - Applicant conducts five-stage rehabilitation or 'restoration' programme for men with serious drug or other addictions or other 'life-dominating' issues - Requirement of programme that participants in Stages 1 - 3 live at site or other property operated by applicant - Site comprises one building divided into three self-contained living units for participants, two smaller units, store room, gym, laundry and recreational areas - Each living unit accommodates eight to ten participants in bedrooms - With overflow beds in lounge rooms, site can accommodate up to 35 participants - Participants allocated to shared bedroom within living unit for three to six weeks before being moved to another living unit at site or another property operated by applicant - 'Cold turkey' detoxification followed by intensive observation and assessment of each participant's issues in Stage 1 and development and implementation of wholistic overview plan / programme for each participant in later stages of programme - Whether use of site properly classified as 'Residential Building' under local planning scheme and therefore prohibited - 'Residential Building' is '... building being used or intended, adapted or designed to be used for the purposes of human habitation ... temporarily by two or more persons ... [or] permanently by seven or more persons, who do not comprise a single family, but does not include a hospital or sanatorium, a prison, a hotel, a motel or a residential school' - Incidental, ancillary or subordinate activity / 'incidental use' - Whether habitation or residence of participants at site during programme is incidental, ancillary or subordinate activity, and 'incidental use' within meaning of local planning scheme, to rehabilitation centre use - Whether use of site properly classified as 'Community Purpose' under local planning scheme and therefore discretionary use capable of approval - 'Community Purpose' is 'the use of premises designed or adapted primarily for the provision of educational, social or recreational facilities or services by organisations involved in activities for community benefit' - Whether use of site is innominate or unlisted use under local planning scheme and therefore capable of approval - Words & phrases: 'adapted', 'community benefit', 'educational services', 'social services'

Legislation:

City of Swan Local Planning Scheme No. 17, cl 1.7.1, cl 4.2, cl 4.2.10, cl 4.3, cl 4.3.1, cl 4.3.2, cl 4.3.3, cl 4.4.2, Sch 1
Planning and Development Act 2005 (WA), s 252(1), s 252(2)
State Administrative Tribunal Act 2004 (WA), s 31(1), s 31(3), s 105
State Planning Policy 3.1 - Residential Design Codes, App 1

Result:

Proposed development is not properly classified as 'Residential Building' under the City of Swan Local Planning Scheme No. 17
Proposed development is properly classified as 'Community Purpose' and therefore capable of approval under the City of Swan Local Planning Scheme No. 17
City of Swan invited to reconsider its decision to refuse development application under s 31(1) of the State Administrative Tribunal Act 2004 (WA)

Summary of Tribunal's decision:

West Australian Shalom Group Inc. (Shalom) operates the 'Shalom House rehabilitation programme' which aims to restore the lives of men with serious drug or other addictions or other 'life-dominating' issues, such as emotional trauma, anxiety and depression. The Shalom House rehabilitation programme has been developed and refined by Mr Peter Lyndon-James, the Chief Executive Officer of Shalom, based on his 'first hand experience of how methamphetamine use destroys the lives of men and their families'. Mr Lyndon-James was a drug addict for 26 years before he became successfully rehabilitated. Based on his particular understanding and experience, the programme involves intensive analysis and engagement with all aspects of a participant's life issues and circumstances and the tailoring and implementation of a wholistic and individualised plan or programme to restore the participant's life.

Because participants in the Shalom House rehabilitation programme fall within the worst category of drug addiction, it is mandatory and an essential component or aspect of the programme that participants in the first three stages of the five-stage programme reside at a property operated by Shalom. Participants are moved between living units operated by Shalom every three to six weeks.

Shalom applied to the City of Swan for development approval under the City of Swan Local Planning Scheme No. 17 (LPS 17) to authorise its use of the site at Nos. 1-3/157 Park Street, Henley Brook for the Shalom House rehabilitation programme. The use of the site includes accommodating up to 35 men in three attached living units known as 'Houses'.

Shalom applied for development approval on the basis that the use for which it seeks consent is classified as 'Community Purpose' under LPS 17. 'Community purpose' is a use that is capable of approval in the exercise of planning discretion on the site under LPS 17. The term 'community purpose' is defined as follows:

"community purpose" means the use of premises designed or adapted primarily for the provision of educational, social or recreational facilities or services by organisations involved in activities for community benefit[.]

The City refused to grant development approval to Shalom on the basis that the use for which consent is sought is classified as 'Residential Building' under LPS 17. 'Residential Building' is a use that is prohibited on the site under LPS 17. The term 'Residential Building' means:

A building or portion of a building, together with rooms and outbuildings separate from such building but incidental thereto; such building being used or intended, adapted or designed to be used for the purpose of human habitation:
· temporarily by two or more persons; or
· permanently by seven or more persons, who do not comprise a single family,
but does not include a hospital, sanatorium, a prison, a hotel, a motel or a residential school.

Shalom sought review by the Tribunal of the City's classification of the use for which it seeks consent and of the City's refusal to grant development approval for that use.

It is common ground between Shalom and the City that if the use for which development consent is sought is not properly classified as either 'Community Purpose' or 'Residential Building' under LPS 17, then it is an innominate or unlisted use under the Scheme. A use that is not listed under the Scheme is capable of approval, if the local government (or the Tribunal on review) determines that the use is, or may be, consistent with the objectives of the zone which applies to the site under LPS 17.

The Tribunal directed that the following issues are to be determined by the Tribunal as a preliminary issue:

Whether the proposed development is properly classified as:
(a)'Residential Building' and therefore prohibited,
(b)'Community Purpose' and therefore capable of approval, or
(c)a use not listed and therefore capable of approval,
under LPS 17.

The Tribunal determined that the use for which development approval is sought is not properly classified as 'Residential Building' under LPS 17 and is therefore not prohibited on the site. This is because the Tribunal determined that the habitation or residential component of the development for which consent is sought is not a separate and distinct land use from the use of the site as a rehabilitation centre, but rather, is merely an incidental, ancillary or subordinate activity, and an 'incidental use' within the meaning of LPS 17, to the use of the site as a rehabilitation centre. In the particular facts and circumstances of this case, the residential or habitation component of the proposed development, being merely an incidental, ancillary or subordinate activity to the use of the site as a rehabilitation centre and an 'incidental use' within the meaning of LPS 17, is not a 'use' requiring development approval. Properly assessed, the only proposed land 'use' requiring development approval is the use of the site as a rehabilitation centre (of which the temporary residence or habitation by participants at the site is an incidental aspect or 'incidental use' for the purposes of LPS 17).

The Tribunal determined that the proposed development is properly classified as 'Community Purpose' under LPS 17, because:

the premises at the site are 'adapted' primarily for the use of the site as a rehabilitation centre;
the use of the site as a rehabilitation centre is or involves the provision of 'educational services' and 'social services'; and
the educational services and social services are provided by an organisation involved in activities for 'community benefit'.

As the City has not yet considered the merits of the development application, the Tribunal invited the City to reconsider its decision to refuse the development application under s 31(1) of the State Administrative Tribunal Act 2004 (WA). The Tribunal adjourned the matter to a directions hearing in order to await the reconsideration.

Category: B

Representation:

Counsel:

Applicant	:	Mr M Flint and Ms B Moharich
Respondent	:	Mr K M Pettit SC and Mr P L Wittkuhn

Solicitors:

Applicant	:	Steenhoff Brothers Barristers & Solicitors
Respondent	:	McLeods Barristers & Solicitors

Case(s) referred to in decision(s):

Boyd and Town of Vincent [2007] WASAT 93; (2007) 52 SR (WA) 125
City of Swan v West Australian Shalom Group Inc.[2017] WASC 217
G & G Corp Asset Management Pty Ltd and Presiding Member of the Metropolitan East Joint Development Assessment Panel [2018] WASAT 9
Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd [1999] WASCA 12; (1999) 102 LGERA 431
Pacific Seven Pty Ltd v Knox City Council (1993) 11 AATR 325
West Australian Shalom Group Inc. and City of Swan [2016] WASAT 41

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The 'methamphetamine epidemic' and the Shalom House rehabilitation or 'restoration' programme

[W]e actually have a methamphetamine epidemic in our nation at the moment where people are smoking methamphetamines like they are cannabis but the effects of methamphetamines are completely different than the effects of cannabis, that they're actually destroying whole families and every rehabilitation or most rehabilitation centres across the whole of Perth are full with a three to six month waiting list and me, my background, having spent 26 years in institutions and prisons most of my life, having been put in a prison as a nine year old little boy, having done nothing wrong except for wanting my mum and my dad, there's three specific times that if somebody had have reached out my hand and grabbed me, I know that my life would have changed and one of them was when I was a nine year old little boy, I was stripped naked and put in a prison cell and they locked the door behind me and I grabbed my pillow and I cried, side to side, saying, 'If you let me out now, I will behave, I won't run away again'. And so myself, I take in one out of every 20 people who ring my phone. I'm looking for that little boy who was nine years old, I'm looking for that person, you know, who was in the position that I was and when that person comes to me, I turn away 19 but I take one. When that person comes to me and all of my houses are full, I put overflow beds in all my lounge rooms and I'm trying to get the rulers of our day to listen to me and say, 'I don't want to be this big. I don't mean to have a property that's zoned illegally. I don't mean to use my block for a workspace. I don't mean to use my other properties. I know I'm disobeying the law, I know that I'm doing what I'm doing is not okay. I didn't ask to start a rehab, just blokes keep coming my way but I can't turn a person away. And so when a person comes to me and every rehabilitation centre in Perth is full with a three to six month waiting list and he says, 'Please, Pete, I will do whatever it takes to change my life', then I take that person in and I put him in the lounge room. And I try to get the attention of the powers to be but they just keep quoting policies and procedures, Acts, rules and guidelines and that's why I have the problem that I have. And I tried to inform them publicly of the problem I have, I informed them on Facebook and social media that I have a problem and I'm disobeying the law and what I'm doing is not okay and I apologise.
(ts 2425, 27 March 2018)
This extraordinary evidence was given to the Tribunal by Mr Peter Lyndon-James, the Chief Executive Officer of West Australian Shalom Group Inc. (Shalom), to explain the rapid expansion of the Shalom House rehabilitation or 'restoration' programme for men with serious drug or other addictions or other 'lifedominating' issues, which Mr LyndonJames has developed over the last five to six years, and how it came to operate, without prior development approval, at Nos 13/157 Park Street, Henley Brook (site). The 'life-dominating issues' which are addressed and treated in the Shalom House rehabilitation programme include, in addition to serious drug and other addictions, issues such as emotional trauma, anxiety and depression.
Although Mr LyndonJames was crossexamined by Senior Counsel for the City of Swan (City or Council), his evidence was not seriously challenged and no contradictory evidence was presented by the City. I find Mr LyndonJames' evidence to be truthful, accurate and reliable and, insofar as he expressed opinions, that he is qualified, by his particular experience with drug use and its consequences and rehabilitation from serious drug addiction, to express those opinions. I therefore accept the entirety of his evidence.
Mr Lyndon-James is a remarkable individual. Having commenced taking drugs at an early age, his life spiralled into 26 years of serious drug addiction, dysfunction, crime and imprisonment.
Ultimately, and thankfully, Mr Lyndon-James became successfully rehabilitated from drug addiction and was able to restore his life. He became an ordained Christian Minister. He has been drugfree for over 15 years. He transformed himself from a drug addict and criminal into a functioning and productive member of society. And not only that, having been through rehabilitation from drugs and personal restoration, and inspired by that experience, he 'felt called [upon] to start a restoration programme for men who want to escape from life-dominating addictions and habits'.
In 2012, Mr Lyndon-James established what is now known as the 'Shalom House rehabilitation programme' to rehabilitate or 'restore' men who, like himself for 26 years, have had their lives and their families' lives 'destroyed' by methamphetamine and other drugs and other addictions and life-dominating issues. In January 2014, Mr LyndonJames established Shalom as a non-for-profit, charitable organisation to operate the Shalom House rehabilitation programme and for related purposes.
As Mr Lyndon-James said in evidence, '[h]aving experienced a life before, during and after drug addiction, my motivation lies in wanting to give others a chance to escape that lifestyle'. The rehabilitation or restoration programme that Mr Lyndon-James has developed, and continues to develop and refine, is based on his 'firsthand experience as to how methamphetamine use destroys the lives of men and their families'. It is also based on his particular understanding, from his own experience, of how it is necessary to intensively analyse and engage with all aspects of a participant's life issues and circumstances, and then to tailor and implement a wholistic and individualised plan or programme, to successfully restore that participant's life. As Mr LyndonJames explained in evidence:
Your heart is your hard drive. Out of the heart flow the issues of life. Out of the heart flow the consequence of life. Out of the heart the mouth speaks. This bloke has been sexually abused and raped as a child but he has never told anybody, and he has found by using drugs has actually covered up the pain, and the hurt, and the shame. … A lot of these men are struggling with the same stuff, and so basically [we] find out what's in them. We find out each person struggles with something different depending on on the life they'[v]e lived, the mum and the dad they've come from. We also find out where their family structure is, have they got anything left or have they bitten it all off? Is anyone left there still to support them? Every family is different. Every person is different. Every person struggles with a different substance. Some struggle with heroin. Some struggle with speed. Some struggle with benzo. Some struggle with sex addiction. Some struggle with an anger addiction. … And so every person is completely different. So basically we don't have one program[me], we have 140 program[mes], because we have 140 men who have all been programmed differently. They've come from different family backgrounds, so think differently, speak differently, act differently, communicate differently, respond differently, learn differently. … So we put in a personal relations restoration programme for every participant, … it starts from the day that they come in, and and the counsellors team look after the top part, which is the restoration of all the family structure. The finance team plans the services, look after everything to do with finances. Resident care look after the general stuff, which is to (indistinct) general issue. Directions, which is my employment and training and the daily work from Monday to Friday, look after the direction to reskill, re-train. A lot of the fellows have no no background in training things. We can try them as a boiler maker, we will try them as a carpenter, we can try them as a tree lopper, and then all of a sudden you stick him as a paver and he loves his paving. He comes alive and all of a sudden he wants to be a paver. S[o] we can try them in all these different places, but we don't have one program[me], we have 140 program[mes]. But you can't have one program[me] and expect everyone is going to go through one program[me] and come out the same, because they learn differently and and it's complex, and so we've had to actually develop a program[me] individually for each person.
(ts 4749, 27 March 2018)
Mr Lyndon-James described the levels or degrees of drug use and addiction from 'category A' (being the least serious category of drug use) to 'category E' (being the most serious category of drug addiction). The Shalom House rehabilitation programme is aimed at people who, like Mr Lyndon-James for 26 years of his life, fall into the most serious category of drug addiction, category E. Mr Lyndon-James said that, for people falling within category E, 'it's nonnegotiable' that the rehabilitation programme must be 'livein' (ts 49, 27 March 2018). As Mr LyndonJames explained in his witness statement:
I believed then, and still believe now, that a live-in facility is the only way to provide an environment where men's lives will at first be strictly controlled with a gradual progression towards freedom and integration as they progress through the Programme.
I believed then, and still believe now, that a live-in restoration centre is vital if struggling men are to have a reasonable chance to restore their damaged lives and re-integrate themselves as functioning members of society.
It takes time and effort to help men to recover and re-integrate into society, and this is why I believe that a holistic approach must be adopted to restore the lives of men. The Programme focuses on developing the 'whole person', which means that all aspects of a participant's life must be worked on. The Programme, therefore, focuses on restoring a participant's finances, relationships with friends and family, spirituality, employment, and level of education and training.
The Programme identifies the individual needs of each participant. Reading, writing and various other courses are provided to ensure that participants become effective communicators who are able to build and maintain relationships. The creation of strong networks assists a participant with not reverting to their previous lifedominating habits.
I believed then, and still believe now, that all aspects of a man's life must be restored in order to help them become contributing and valuable members of the community.

To the same effect, and even more emphatically, Mr LyndonJames gave the following explanation in his oral evidence as to why participants' habitation or residence at the site is an essential component or aspect of the Shalom House rehabilitation programme:
Now, a live-in rehabilitation centre for the people that I deal with, and I must (indistinct) I must it's a non-negotiable must have rehabilitation live-in, must, must, non-negotiable. No other way to help them. As and Bs live-in? No. A day appointment is great. Works for an A and a B. Not a problem. C and a D, you're wasting your time. There's lots of groups out there wasting their time. They're part of the matrix. Me, I focus on these Es. I want them at the bottom of the bottom of the bottom. I want to I want them, 'Will you shave your head?' 'Yeah.' 'Will you come in right now, this second? Will you drop everything?' 'Yeah.' 'And will you work from Monday to Friday, 9 to 5 (indistinct) actually stay here without pay? You're never going to get a cent?' 'Yeah.' 'Will you do whatever it takes to change your life regardless of the consequences?' 'Yeah.' 'Well, come into my parlour, bro. Come on, buddy. And once you come into my house, I swear as God is my witness I'd die in your place for you.' And I want my house full of these, and that's why I've got so (indistinct) I've got 140 for the moment, and I'm about to get another house to get myself in more of a pickle.
(ts 5354, 27 March 2018)

Planning framework

The 'pickle' that Mr Lyndon-James referred to in this evidence, and the reason why he apologised in his evidence set out at [1] above, is that he started using the site as a rehabilitation centre without having obtained prior development approval from the Council under the City of Swan Local Planning Scheme No. 17 (LPS 17 or Scheme).
The site is zoned 'RuralResidential' under LPS 17. Clause 4.2 of LPS 17 states that '[w]ithout limiting their application to any discretionary decision, it is intended that the objectives [of the relevant zone] will be applied by Council to determine the appropriateness in a particular zone of discretionary uses, or those uses not listed in the Zoning Table'. Under cl 4.2.10 of LPS 17, the objectives of the RuralResidential zone are to:
(a)provide for low density residential development and associated rural-residential activities in comprehensively planned estates;
(b)recognise the environmental characteristics of the landscape, including landform, water resources, remnant vegetation, and native fauna, and to ensure as far as practicable, that these characteristics are not compromised by development and use of the land;
(c)encourage the rehabilitation of degraded areas through selected replanting of indigenous flora, and the creation and enhancement of habitat for indigenous fauna.
Clause 4.3.1 of LPS 17 states as follows:
The Zoning Table indicates, subject to the provisions of the Scheme, the permissibility of uses in the Scheme area in the various zones. The permissibility of any uses is determined by cross-reference between the list of use classes on the left-hand side of the Zoning Table and the list of zones at the top of the Zoning Table.
The symbol used in the crossreference in the Zoning Table in cl 4.3 of LPS 17 between the use class 'Community Purpose' and the RuralResidential zone is 'D'. The symbol used in the crossreference in the Zoning Table in cl 4.3 of LPS 17 between the use class 'Residential Building' and the RuralResidential zone is 'X'.
Clause 4.3.2 of LPS 17 states, in part, as follows:
The symbols used in the cross-reference in the Zoning Table have the following meanings
…
''D'' means that the use is not permitted unless the local government has exercised its discretion by granting planning approval;
…
''X'' means a use that is not permitted by the Scheme.
Under cl 1.7.1 of LPS 17, the meaning of the land use class 'Community Purpose' is defined in Sch 1 of the Scheme and the meaning of the land use class 'Residential Building' is defined in State Planning Policy 3.1 Residential Design Codes (RCodes). The term 'community purpose' is defined in Sch 1 of LPS 17 as follows:
''community purpose'' means the use of premises designed or adapted primarily for the provision of educational, social or recreational facilities or services by organisations involved in activities for community benefit[.]
The term 'Residential Building' is defined in App 1 to the RCodes as follows:
A building or portion of a building, together with rooms and outbuildings separate from such building but incidental thereto; such building being used or intended, adapted or designed to be used for the purpose of human habitation:
• temporarily by two or more persons; or
• permanently by seven or more persons, who do not comprise a single family, but does not include a hospital or sanatorium, a prison, a hotel, a motel or a residential school.
Shalom and the City jointly contend that the concluding words of the definition of 'Residential Building' ('but does not include a hospital or sanatorium, a prison, a hotel, a motel or a residential school') are included within the second bullet point of the definition by reason of a formatting error. I agree with the joint position of the parties in this respect, as did her Honour BanksSmith J in City of Swan v West Australian Shalom Group Inc. [2017] WASC 217 at [16]-[17]. The concluding words of the definition are clearly intended to expressly exclude from the definition certain land uses which might otherwise be considered to fall within it. The concluding words therefore qualify the whole definition, not just the second bullet point. Correcting the formatting error, the term 'Residential Building' means:
A building or portion of a building, together with rooms and outbuildings separate from such building but incidental thereto; such building being used or intended, adapted or designed to be used for the purpose of human habitation:
•temporarily by two or more persons; or
•permanently by seven or more persons, who do not comprise a single family,
but does not include a hospital or sanatorium, a prison, a hotel, a motel or a residential school.
Clause 4.4.2 of LPS 17 states as follows:
If a person proposes to carry out on land any use that is not specifically mentioned in the Zoning Table and cannot reasonably be determined as falling within the type, class or genus of activity of any other use class the local government may
(a)determine that the use is consistent with the objectives of the particular zone and is therefore permitted;
(b)determine that the use may be consistent with the objectives of the particular zone and thereafter follow the advertising procedures of clause 9.4 in considering an application for planning approval; or
(c)determine that the use is not consistent with the objectives of the particular zone and is therefore not permitted.

Development application and application for review

On 22 June 2015, Shalom applied to the City for development approval under LPS 17 to change the use of the site from three 'Grouped Dwellings' to 'Community Purpose' in order to regularise the current use of the site. On 28 July 2015, the City refused to grant development approval for the use on the basis that the use 'is considered to be classified as a ''residential building'' pursuant to [LPS 17]' and is 'therefore not permitted' by the Scheme. In refusing the development application on this basis, the City did not undertake a merit-based assessment of the proposal.
On 18 August 2015, Shalom sought review by the Tribunal of the City's decision. On the application form, Shalom nominated the enabling Act conferring jurisdiction on the Tribunal as s 252(2) of the Planning and Development Act 2005 (WA) (PD Act). Section 252(2) of the PD Act provides an express right of review in relation to the classification of a use under a planning scheme or the permissibility of a use that is not listed under a planning scheme. However, as was held in Boyd and Town of Vincent [2007] WASAT 93; (2007) 52 SR (WA) 125 at [16], the Tribunal also has power to determine the proper land use classification of a proposed use in an application for review of the refusal by the responsible authority to grant development approval under s 252(1) of the PD Act. It is common ground that, in this proceeding, Shalom seeks review not only of the Council's decision as to the proper land use classification of the proposed use, but also, if the proposed use is capable of approval under LPS 17, of the City's decision to refuse to grant development approval in relation to it. In effect, therefore, the application for review is made under s 252(1) of the PD Act, rather than, or at least in addition to, s 252(2) of the PD Act.

Preliminary issue as to land use classification

On 30 October 2015, I directed that the following issues are to be determined by the Tribunal as a preliminary issue in the proceeding:
Whether the proposed development is properly classified as:
(a)'Residential Building' and therefore prohibited,
(b)'Community Purpose' and therefore capable of approval, or
(c)a use not listed and therefore capable of approval,
under [LPS 17].
The preliminary issue was heard by the Tribunal constituted by Senior Member Mr P McNab on 19 January 2016 and final written submissions were filed on 24 February 2016. Senior Member McNab published written reasons for decision on 21 April 2016: see West Australian Shalom Group Inc. and City of Swan [2016] WASAT 41. Senior Member McNab answered the questions in the preliminary issue and made orders as follows:
1.The answers to the preliminary questions reserved for decision are as follows:
i.Is the proposed development a 'Residential Building' and therefore prohibited? Answer: 'No'.
ii.Is the proposed development a 'Community Purpose' and therefore capable of approval? Answer: 'No'.
iii.Is the proposed development a use not listed and therefore capable of approval under the City of Swan Local Planning Scheme 17? Answer: 'Yes'.
2.Pursuant to s 31(1) of the State Administrative Tribunal Act 2004 (WA) the respondent is invited to reconsider its decision under review, consistently with these reasons for decision, and as soon as is practicable.
The City sought leave to appeal against the Tribunal's decision that the use is not properly classified as 'Residential Building' (and is therefore not prohibited under LPS 17) to the Supreme Court of Western Australia under s 105 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Shalom filed a notice of contention and an application for leave to cross-appeal against the Tribunal's decision that the use is not properly classified as 'Community Purpose' (and is therefore not capable of approval on this basis under LPS 17). The applications for leave to appeal and cross-appeal, and the substantive appeals, were heard together by BanksSmith J on 27 January and 8 February 2017. Her Honour reserved her decision and published written reasons on 3 August 2017: see City of Swan v West Australian Shalom Group Inc..
Her Honour granted leave to appeal and allowed the appeal on the ground that the Tribunal had failed to properly consider the 'temporary limb' (being the first bullet point in the definition) of the term 'Residential Building' and had misconstrued the meaning of that term. Her Honour determined that, as a result, 'the Tribunal failed to determine and consider all issues relevant to the consideration of that use' and remitted the matter 'to the Tribunal (differently constituted) for proper application of the relevant definition, including the consideration of the elements of the definition such as ''human habitation''' ([84]).
Her Honour also granted leave to appeal and allowed the crossappeal by Shalom against the Tribunal's determination that the use is not properly classified as 'Community Purpose' under LPS 17, on the basis that 'the Tribunal applied a locality test which was not one of the necessary elements of the definition [of 'community purpose'] and failed to consider and apply the express elements of the definition' ([108]). Her Honour noted that the Tribunal 'referred to various sources in determining that in addition to the meaning prescribed by the defined term, there was an ''inherent requirement of sufficient localism'' in the meaning of ''community purpose''' ([88]), referring to the Tribunal's reasons at [53]-[61]. BanksSmith J held as follows in relation to the meaning of the term 'community purpose' in LPS 17 [98]-[102]:
98Applying the statutory construction principles referred to above, I do not consider it is necessary to imply words to the effect that a relevant purpose must be related to members of a particular locality.
99It is not a necessary term. The potential for those who reside within the local geographical area to benefit from the 'community purpose' use of premises ought not be circumscribed by the potential for others with some common need or interest but residing outside the location to also benefit from it.
100Further, as noted in [Urquhart v City of Mount Gambier (1995) 66 SASR 26; (1995) 89 LGERA 57], the viability of a 'community purpose' may well be undermined if a narrow view of the term is implied, to the detriment of those within the geographical area who may miss out altogether as a result.
101It is necessary to return to the elements of the definition. The City's submission that the proper approach to the definition is to consider its particular terms is clearly correct. The parties agreed and proceeded on the basis (leaving aside the issue of locality) that the terms required that the premises are designed or adapted primarily for the 'use'; the use is the provision of educational, social or recreational facilities or services; that such facilities or services were to be provided by organisations involved in activities for community benefit.
102The Tribunal did not consider those terms. It did not consider the requirement that the organisation be involved in activities for 'community benefit' and the extent to which such benefit is met in the particular factual circumstances of Shalom and the prescribed requirements of admission to and participation in the programme it conducts. Whilst the words 'community benefit' are not defined, for the reasons set out above I would not ascribe to them a meaning so narrow that the potential for those outside a particular local area to benefit from the activities would deny a 'community benefit'.
In considering a submission by the City, her Honour also held as follows [107]:
In the context of 'community purpose', it is used first as part of the defined term, and second in providing that the relevant organisation is involved in activities for 'community benefit'. The scope of 'community purpose' is determined by its definition. In the context of 'community benefit', 'community' is not to be construed narrowly for the reasons above. That does not mean it necessarily accords with 'public'. The general meaning of 'community' still invokes a community of interest: that interest may well include connection to a particular locality. However, in my view where used in the expression 'community benefit,' it is not limited to a group of persons with a community of interest who must reside in or be associated with a particular locality. The manner in which 'community' is used in the 'aims' does not compel a contrary view.
Banks-Smith J set aside the Tribunal's decision and remitted the matter to the Tribunal (differently constituted) in order for the issues to be considered and determined taking into account her Honour's reasons.
On 23 November 2017, I directed that the same preliminary issue as I had formulated a little over two years earlier (see [21] above) is to be determined by the Tribunal and listed the matter before myself. I heard the preliminary issue on 27 and 28 March 2018. The evidence before me consists of a statement of agreed facts and a bundle of agreed documents as well as a witness statement and extensive oral evidence given by Mr Lyndon-James. I also had the benefit of a view of the site, accompanied by the parties' legal representatives and Mr LyndonJames, in order to understand the evidence presented at the hearing.
I have already made certain findings of fact in the introduction to these reasons. I will now set out the statement of agreed facts and make further findings of fact based on the evidence of Mr LyndonJames. I will then address each of the questions in the preliminary issue.
Shalom's position is, as it has been since the lodgement of its development application in June 2015, that the use for which it seeks development approval is properly classified as 'Community Purpose' under LPS 17. Alternatively, Shalom contends that the use is an innominate or unlisted use under LPS 17 which may be approved under cl 4.4.2 of the Scheme if the City (or the Tribunal on review) determines that that use is, or may be, consistent with the objectives of the RuralResidential zone. In contrast, the City's position is, as it has been since it refused to grant development approval in July 2015, that the use is properly classified as 'Residential Building' and is, therefore, prohibited on the site.
For the reasons set out later, in my view, the habitation or residential component of the development for which consent is sought is not a separate and distinct land use from the use of the site as a rehabilitation centre, but rather, in the particular facts and circumstances of this case, is merely an incidental, ancillary or subordinate activity, and an 'incidental use' within the meaning of LPS 17, to the use of the site as a rehabilitation centre. Consequently, no part of the proposed development is properly classified as 'Residential Building' under LPS 17. The proposed development is therefore not prohibited on the site under the Scheme.
Furthermore, for the reasons set out later, in my view, the proposed use is properly classified as 'Community Purpose' under LPS 17 and is, therefore, a use which is capable of approval in the exercise of planning discretion on the site.

The facts

The parties provided the following statement of agreed facts for preliminary issue as to use classification (agreed facts):
The Subject Property
1.The subject property is Lot 1 (1-3/157) Park Street, Henley Brook (Lot 1 on Diagram 89637 as contained in the Certificate of Title (Volume 2055 Folio 269), located on the corner of Park Street and Murray Road.
2.The subject property is within the Scheme Area of the City of Swan Local Planning Scheme No. 17 (LPS 17).
3.Under LPS 17, the subject property is currently zoned 'Rural[]Residential'.
4.The proposed use neither requires nor anticipates any additional construction on the subject property.
5.LPS 17 requires the use and development of land in the Rural[]Residential zone to accord with the following objectives to:
(a)provide for low density residential development and associated rural-residential activities in comprehensively planned estates;
(b)recognise the environmental characteristics of the landscape, including landform, water resources, remnant vegetation, and native fauna, and to ensure as far as practicable, that these characteristics are not compromised by development and use of the land;
(c)encourage the rehabilitation of degraded areas through selected replanting of indigenous flora, and the creation and enhancement of habitat for indigenous fauna.
6.On 22 June 2015, [Shalom] applied for planning approval under LPS 17 to change the use of the subject property from three (3) 'Grouped Dwellings' to 'Community Purpose'.
7.'Community Purpose' is categorised as a 'D' use in the Rural[]Residential zone under the LPS 17.
8.On 28 July 2015, the [City] issued a refusal of the application for planning approval on the basis that the proposed use is defined as a 'Residential Building', which is not permitted in the Rural[]Residential zone under the LPS 17.
9.LPS 17 provides that if a person proposes to carry out on land any use that is not specifically mentioned in the Zoning Table and cannot reasonably be determined as falling within the type, class or genus of activity of any other use class, the [City] may determine that the use either:
(a)is consistent with the objectives of the particular zone and accordingly may approve the application;
(b)may be consistent with the objectives of the particular zone and accordingly may approve the application after following the consultation requirements of the Scheme; or
(c)is inconsistent with the objectives of the particular zone and accordingly may refuse the application.
10.In refusing the planning application solely on the basis that the proposed use is not permitted in the Rural[]Residential zone, the [City] did not undertake a merit-based assessment of the proposal.
11.The principal building on the subject property is a rectangular building constructed of brick and tile. It is more particularly described as follows:
(a)it is divided by walls and storeys into five separate living units or units designed as living units. There are no doors or openings that enable access between those separate living units;
(b)each of the living units has its own lockable entry door;
(c)three of the living units are side-by-side, with their entry doors, at ground level, facing the street frontage.
(i)They each have a high-ceiling front lounge, which connects by stairs to a mezzanine level;
(ii)Each mezzanine level has a kitchen and dining area;
(iii)The dining areas open on to a common balcony that extends for the length of the rear of the building;
(A)Unit 1 [referred to as 'House 1'] has: 3 bedrooms on the ground floor, and 2 bedrooms on the mezzanine level;
(B)Unit 2 [referred to as 'House 2'] has: 2 bedrooms on the ground floor, and 1 bedroom on the mezzanine level; and
(C)Unit 3 [referred to as 'House 3'] has: 3 bedrooms on the ground floor, and 2 bedrooms on the mezzanine level.
(d)The block slopes from front to rear enabling carports and living areas to exist beneath the upper living areas.
(e)The fourth and fifth units have their entry doors facing the rear of the property and they are at each end of the rectangular building.
(f)The fourth living unit at the east end of the building, identified as Unit 1a, is being used as a living quarters for two "live in-house leaders". It comprises:
(i)a kitchen;
(ii)a dining or activity area;
(iii)a bedroom;
(iv)a storage area off the bedroom;
(v)a toilet and bathroom; and
(vi)a carport, which has been converted to a storage room, with cool room fridge panelling and new lighting installed, for clothing, food and basic household items.
(g)The fifth of the five residential units at the west end of the building, identified as Unit 3a, akin to a 'granny flat', is currently housing one of our live inhouse leaders. It comprises:
(i)one bedroom;
(ii)a kitchen;
(iii)a bathroom with toilet; and
(iv)a carport.
12.In the centre of the building between the car ports is a large laundry with a separate toilet. The laundry is currently equipped with several washing machines used for washing participant's [sic] clothing.
13.The setbacks of the building are as follows:
(a)from Park Street: 20 metres;
(b)from the western boundary: 28 metres;
(c)from the eastern boundary: 20 metres.
14.There are lawns and gardens within the immediate curtilage of the main building.
15.The property does not bear any signage.
16.There are falls in the levels from the street to the rear of the subject land. Rearward of the house there is a retaining wall that accommodates the falling levels.
17.There is a brick fence and locked gate at the front of the property, with an intercom and a system for opening the gate remotely. The brick fence extends across the property along Park Street and around the corner of Murray Street [sic] to a second driveway entry on Murray Street [sic]. The other boundaries are fenced with standard rural fencing.
18.There is vehicular entry to the subject land from Murray Road (eastern) boundary via a driveway to the curtilage of the main building.
19.The subject property has 9 available car bays for the on-site staff and 'Stage 3' participants (see further below), and there is ample area for additional parking.
20.There is sufficient parking to accommodate West Australian Shalom Group Inc[.]'s ("Shalom Group Inc.") fleet of buses, which currently includes four buses. The buses are frequently parked at various properties controlled by Shalom Group Inc, and are used to transport the men from the subject property to outside events. All buses are capable of parking on the subject property at one time.
21.Rearward of the main building and its curtilage/retaining wall, the balance of the property is cleared paddocks.
22.The proprietor of the subject property is Swan Valley (WA) Pty Ltd.
23.Tenancy Agreements for [House] 1, [Unit] 1a and [House] 2 were signed on 18 November 2014, with Tenancy Agreements for [House] 3 and [Unit] 3a being signed on 10 February 2015. In both cases, tenancy commenced immediately. The tenancies were initially entered into between the registered proprietor and Mr Lyndon-James, the Chief Executive Officer of Shalom Group Inc. Mr LyndonJames transferred the tenancies to the Shalom Group Inc. The tenancies do not include anything other than the main building on the property, however the proprietor/landlord has not taken objection to use by participants of additional areas referred to in this statement of facts.
24.Subsequent to the commencement of the tenancies, the subject property has become known as 'Shalom House'.
25.Other buildings on the subject property are:
a)a single shed set up as a stable, currently not in use;
b)a 8m x 8m tin shed, which is set back 150m from the rear of the main building. … The tin shed is the metal building in the centre of the pack paddock.
c)three walk-in stables located on the subject property The stables are … at the southwest corner of the main building, near the water tank. The stables have been converted into a nursery and are used by one of the participants who shows a keen interest in horticulture. The plants are currently used to improve the subject property's aesthetic. …
26.The subject property has two large below-ground water tanks at the rear and at either end of the rectangular main building.
27.One of the adjacent paddocks has been levelled and turned into a soccer/sports field for the men to use during their recreation time. …
Shalom House Programme
28.Shalom House accommodates up to 35 men in a live-in arrangement at the subject property, and the development application is for continuation of the current use. The current use, as at 20 February 2018, involves 32 men residing, as mentioned, however the applicant emphasises other aspects of the current use of the property as described in these Agreed Facts.
29.Deleted
30.Features of the Shalom House programme include:
(a)Men are only accepted as participants if they:
(i)have been suffering from a debilitating lifecontrolling issue, such as (but not limited to) substance abuse, institutionalisation, estrangement from key relationships, emotional trauma and other psychological inflictions such as fear, depression and anxiety;
(ii)personally contact Shalom Group Inc. for admittance;
(iii)express a genuine commitment to turn their lives around;
(iv)commit to working 5 days a week (Monday to Friday) for the duration of their participation in the programme: this includes volunteer work for various charities, external work for employers who can provide a safe working environment (a working environment that reinforces the lessons and values taught at Shalom House) and domestic tasks that include the upkeep of the House;
(v)commit to actively participate in the comprehensive five (5) stage restoration programme, which involves a combination of full time work, therapy through structured counselling, spiritual guidance and decision-making training;
(vi)commit to the rules of Shalom House and commit to living by the Christian ethos of Shalom House; and
(vii)are interviewed and approved by the Chief Executive Officer of Shalom House, who has a discretion to determine the veracity of the participant's commitment to subsections (iii) - (v) above.
(b)Participants pay Shalom House $300 per week, drawn from their Centrelink entitlement or personal money, which covers all aspects of the programme including accommodation.
(c)Upon arrival, if an incoming participant lacks suitable clothing, Shalom House provides clothing that is of a generic style and with suitable branding to avoid association with the participant's former lifestyle and addictions.
(d)Shalom House supplies all toiletries throughout the participant's duration in the programme.
(e)The current living arrangements for the granny flat are as described in 11(g) above. The following points relate to the three side-by-side residential [Houses]:
(i)Each participant is assigned a bedroom that is usually shared with another participant for the purpose of teaching co-operation and promoting a family environment.
(ii)Every three (3) to six (6) weeks, the participants are assigned a new bedroom to prevent the participant from becoming too accustomed to a single living environment, and to also encourage them to build relationships with other participants.
(iii)There are a mix of participants within each residential unit throughout the various stages of the programme, from new arrivals to those close to leaving the programme and re-entering mainstream society.
(iv)A roster of domestic tasks is kept for each residential unit and each participant has household obligations each day.
(v)Participants in each residential unit are expected to keep their own bedroom and, jointly, to keep all living areas clean and orderly.
(vi)Subject to 30(cc) below, the participants also cook meals for the 'household' represented by that residential unit.
(f)The Chief Executive Officer of Shalom Group Inc. does not reside at the subject property, but oversight of Shalom House is his full-time occupation. He is progressively trying to distance himself from the operations of Shalom Group Inc, in the hope that its programmes will one day be entirely functional without him.
(g)Shalom House has recently created a new position of "programme manager" to assist with the rapid increase in the level of demand for the services provided by Shalom Group Inc. in relation to its Shalom House programme in particular. The role involves assessing the progress of each participant to ensure they are adequately meeting the requirements of the programme.
(h)Shalom Group Inc. currently has 29 paid staff members who hold administrative or counselling roles. The administrative staff members work in an office building off-site from the subject property but located in close proximity to the subject property. The office building is located at 6571 West Swan Road, West Swan.
(i)Further details as to the role of the employed counsellors are in subparagraphs 30(p), 30(q), 30(r) and 30(s).
(j)There is no free-to-air television on the property. There are televisions with a connection to a Christian television station, and PG-rated DVDs are also available.
(k)Drinking, smoking and alcohol are not permitted on the property.
(l)The bars located in each [House] have been converted to libraries, where both books and food are stored.
(m)Unless a participant is experiencing severe withdrawal symptoms, which is determined by a medical practitioner during the start of the programme, the participant detoxes at the beginning of the programme, which occurs:
(i)on-site;
(ii)without the aid of any medications;
(iii)without the attendance of a medical practitioner or psychiatrist during the detox, unless this happens to coincide with weekly visits of a doctor and/or psychiatrist as mentioned in 30(o) and 30(p) below;
(iv)with the informal and untrained support through the detox process provided by fellow participants; and
(v)without any special facility on-site, and the participants recover within the household of one of the residential units.
(n)Upon entry to the programme, all participants are taken to see a medical practitioner, Dr Hammond, at Craigie Medical Centre for an initial consultation, examination, blood and urine analysis. Shalom House also offers transportation for participants to visit Dr Hammond on a weekly basis for the purpose of providing any participant with medical assistance on an "as needs" basis, or periodically for ongoing medical treatment as determined by the doctor.
(o)As outlined in Shalom House's Residential Contract, it is mandatory for each participant to see both a medical practitioner and a psychiatrist on entry to the programme. The medical practitioner referred to in paragraph 30(n) above is seen at the Craigie Medical Centre, where the programme participant is bulk-billed for his visits. The medical practitioner also provides an after-hours service in the event that issues or questions arise. The psychiatrist performs the consultations for programme participants free of charge at the Marian Centre, Wembley. There has been no change in either service provider since the establishment of Shalom House.
(p)Within the first twenty-four (24) hours of entry into the programme, all participants are assigned a counsellor, the counsellor being one of the paid staff members of the Shalom Group Inc. referred to in paragraph 30(i). Each participant is expected to have completed their initial consultation with their assigned counsellor within the first two (2) days of entry into the programme. Each counsellor is assigned up to ten (10) participants at one time. If the counsellor believes it is necessary, the participant may then be referred on to receive ongoing psychiatric support by Dr Van Wyk at the Marian Centre.
(q)There are three types of counselling meetings undertaken by counsellors: one-one-one [sic]; group; and family.
(r)Counsellors are available to attend Shalom House from Monday to Friday, and provide the three types of counselling meetings, according to requirements, during those visits. With regard to one-on-one meetings with [a] participant, each participant regularly meets with their assigned counsellor every two (2) to three (3) days during the first three (3) months of their term of residency. Meetings with counsellors usually become less frequent as the participant progresses through the programme. Any participant can request a one-on-one meeting with their assigned counsellor on a day between Monday and Friday. Each one-on-one counselling session lasts for approximately one (1) hour at a time. One-on-one meetings with participants are conducted throughout the entire property as the property is quite large.
(s)With regard to counselling services to family members of the House participant, these can be provided in cases where there has been a breakdown of family relationships. Counselling sessions which include the family members are conducted at the subject property in the living areas.
(t)The lounge rooms, due to their large size, are also used for training program[me]s, such as first aid training, and fire warden and safety training.
(u)Shalom House stringently guides each participant through the programme's five (5) stages, however, stages four (4) and five (5) operate at separate locations from the main Shalom House to assist the participants with re-integrating back into society. The overall duration of the programme, and the duration of each stage, is flexible, tailored to each individual participant. There is no definitive timeframe in which participants progress through the first three (3) stages as this is dependent on the individual needs and experiences of each participant. Overall, the entire programme typically lasts for approximately 12 months. Further details regarding the first three (3) stages, located onsite, are as follows:
(i)Stage 1: approximately three (3) months, except as described elsewhere within these Agreed Facts. There is also no leaving the property unless with an approved person. The participants work full time doing volunteer work either within the property or for various charitable organisations as arranged by Shalom Group Inc. Upon arrival, if a participant requires detox, this occurs on-site at the beginning of Stage 1. Additionally, there is limited access to TV and media broadcasts throughout the programme's five (5) stages (detailed at 30(j) above). There is a limit on phone use throughout the duration of the programme. During this stage, participants are introduced and acclimate to the lifestyle that the Shalom House programme demands.
(ii)Stage 2: the Directions Team (see 30(v) - below) of Shalom House works up a Participant Overview Plan (see 30(w) below) with the individual participant. This plan is devised during the final month of stage 1 and the meetings regarding this occur wherever is most convenient for everyone involved, usually at the subject property and sometimes at another Shalom Group Inc. property. During Stage 2, the participants are focused on improving their work skills, vocational skills and life skills. Additionally, the participants work two (2) days a week, progressing up to three (3) or a maximum of four (4) days per week. They perform paid work with an employer, which:
(A)partners with Shalom Group Inc. and its objectives;
(B)understands the background of the individual participant;
(C)is prepared to take the participant into employment;
(D)is assessed as providing an environment free of negative influences (Partner Employer).
While the participants perform paid work for Partner Employers, Shalom Group Inc. ensures that the generated revenue is used to fulfil the participants' Participant Overview Plans, which includes paying off any accrued debt, fines or simply helping the participants to qualify for their driver licences or to acquire tools for future use in their chosen vocational skill.
Apart from employment, and except as elsewhere within these Agreed Facts, the participants do not leave the subject property except with an approved person.
(iii)Stage 3: The participants perform five (5) days per week paid work with a Partner Employer. They are also allowed to use their mobile phones, as well as the freedom to come and go at Shalom House as they see fit including by means of their own vehicle if they have one, subject to a curfew of 11pm.
At any point during the five (5) stages, a participant may have his programme terminated for failing to comply with the rules and responsibilities imposed by Shalom House.
Shalom House provides a bus service that takes Stage 1 and Stage 2 participants to their daily work places and returns them to the subject property.
(v)The Directions Team referred to in 30(u)(ii) is comprised of Kevin Jones and Mark Barnard, who are responsible for assisting participants and potential employers in finding a suitable career path. The Directions Team helps provide training and resources for each participant in their chosen path of employment. Their office is located at the office building referred to in 30(h), which is where they liaise with Partnered [sic] Employers. Mark Barnard is also a participant in the later stages of the programme. On average, the Directions Team spends between 15 and 20 hours per week at Shalom House.
(w)The Participant Overview Plan referred to in 30(u)(ii) involves working through, with each participant around the last month of his Stage 1, the key life issues facing them, their hopes and aims, a set of objectives, and a plan of action for realising them. Examples include:
(i)steps to progressively restore estranged relationships, setting aside restraining orders;
(ii)addressing debts;
(iii)acquitting any community service orders;
(iv)saving money to acquire items required for a business; or
(v)assisting the participant on a path to training, qualifications, employment, owning a business, etc.
(x)From the income earned from employment with a Partner Employer, participants are encouraged to pay unpaid fines and debts, and they are also encouraged to purchase the essentials to realise their action plan. This includes, but is not limited to, a car or tools for a business etc.
(y)Every weekday morning, the participants assemble in the unit with the largest dining area for breakfast and "morning devotionals". This activity may be described as being a mandatory discipleship session where volunteers read and discuss biblical teachings and pray with each other. Participants are expected to undertake their own morning devotionals on weekends.
(z)Each Friday night, the Shalom House bus delivers all the participants to a church service. The location alternates each week in an effort to expose the participants to various styles of Christian services.
(aa)Each Saturday morning the participants meet at Shalom House with the house leaders in the Unit they reside in to discuss the running of the house and resolve any issues that have arisen in the previous week.
(bb)On Saturdays the participants get to participate in planned and supervised recreational activities that may include bus trips to the beach or other related venues.
(cc)Each Saturday evening, between 4:30pm and 8:00pm, the Shalom House bus delivers all the participants to and collects them from the Blue Gum Community Centre, in Beechboro, for "Shalom House Family Night". While at the Community Centre, the participants, with their friends and families, attend a church service before sharing a meal together. Contact with family members is limited, and Mr Lyndon-James determines whether any additional family visits are necessary for the purpose of relational restoration. If additional family visits do occur, they usually begin with an initial tour of the subject property, and over time they progress to visits at other Shalom Group Inc. properties.
(dd)Every Sunday, the Shalom House bus delivers the participants to a different church within the Perth metropolitan area that has been chosen during the prior week to give them a broad experience of the various different styles of Christian churches.
(ee)Shalom House provides all the food, which the participants cook/prepare in their separate units. A Shalom Group Inc. employee, Damien Gee, performs the shopping for the majority of household items, including food, cleaning items, and personal hygiene items. Damien's job is to oversee the running and stock of the three [Houses]. Other individual personal items are acquired by the participants themselves on an "asneeds" basis. Participants are given the opportunity to purchase such items each Sunday when they are taken for a short supervised shopping trip.
(ff)Shalom Group Inc. also arranges for teams of participants to attend and undertake supervised gardening and other charitable work for people in need in the broader community. The administration and liaison with external stakeholders associated with arranging these activities is undertaken from the offices in 30(h). The types of charitable work includes:
(i)assisting women with building a house after their home was destroyed in a fire;
(ii)collecting garbage in local suburbs;
(iii)building new sheds, and conducting cleaning services for wildlife shelters;
(iv)conducting cleaning and maintenance services at Lockridge Primary School, Perth Montessori School and Swan Christian School; and
(v)gardening for elderly individuals.
(gg)In 2017, the Shalom House programme received the 2017 Telstra Western Australian Charity Award. …

As indicated in the agreed facts (1), although the street address of the site is 1-3/157 Park Street, Henley Brook, the site is located at the corner of Park Street and Murray Road. The sole vehicular access to the site is from Murray Road.
Entering the site from Murray Road, the first of the three main living units is referred to as 'House 1', the second is referred to as 'House 2' and the third (or furthest from Murray Road) is referred to as 'House 3'. In addition to the bedrooms in Houses 1, 2 and 3 referred in the agreed facts (11(c)), overflow beds can be placed with partitions in the lounge areas of each of these three living units.
Further to the agreed facts (11(f)), the two 'live in-house leaders' in Unit 1a are a counsellor, who conducts counselling with the participants at the site, and a staff member, who operates one of Shalom's trucks.
One of the rooms in Unit 1a, which was formerly the kitchen, is now set up as a counselling room and is 'set aside specifically for counselling' (ts 36, 27 March 2018). This room has a whiteboard, a table and chairs. There is a sign on the door to the counselling room stating 'Please do not disturb, counselling in place'. As indicated in the agreed facts (30(r)), counselling also takes place throughout the site.
Unit 3a is used to house a person who is the first aid officer of the site and a person who is also a 'live in-house leader' who manages the store room.
Shalom has adjusted or modified each of the three former carports (one under each of what are now Houses 1, 2 and 3) to make the premises suitable to requirements for the use of the site as a rehabilitation centre. The former carport for what is now House 1 (referred to in some parts of the evidence as the carport for Unit 1a) has been converted by Shalom into an enclosed store room by the installation of panels and a door which can be locked. A large number of power points have been added to the store room and it has been fitted out with shelves and racks. The shelves contain food, grocery and laundry items required by the participants in the programme and the racks contain work and other clothes and shoes which are given to the participants in the programme to wear.
As indicated in the agreed facts (30(ee)), the store room is operated by an employee who is one of the 'live in-house leaders'. Each day, this person prepares the menu for dinner to be cooked by the participants in each of Houses 1, 2 and 3 on a roster basis and distributes any necessary ingredients to make dinner. In addition, once a week, he stocks up the general groceries and cleaning items in each of the living units on site.
The clothes and shoes in the store room are necessary, both to provide suitable work wear for participants doing voluntary work and paid work (discussed below) and because the overwhelming majority of participants accepted into the programme think that they are coming in 'for a five minute chat' and, if Mr Lyndon-James accepts them into the programme, they must make an immediate decision to enter the programme with only the clothes that they are wearing. Mr LyndonJames explained that by doing so 'it separates the wheat from the chaff those who are serious and those who are not serious' (ts 33, 27 March 2018. If a potential participant is not willing to make an immediate commitment, then he is told not to call Shalom again for six months. If a person is accepted into the programme and is willing to go in immediately:
They're just serious, they want to do whatever it takes to change. And so I let them in, and when I let them in we shave their heads, we basically strip search them, we send them down to the stores and they're given a crate like this, and this crate like this gives them enough to actually to get through clothes for the next couple of days until their family has an opportunity to bring in together a list of the gear that were asked, that they gather on this person's behalf. And so in this we will have toiletries, they have a pair of shoes, some work clothes, hi-vis shirts, a set of work boots, sunscreen, water bottle, jocks and socks, a towel and and a change of clothes.
(ts 34, 27 March 2018)
In addition, as Mr Lyndon-James explained, Shalom has to provide clothing on a long-term basis for some participants:
… because a lot of the time the families of the fellows that we get, they've hurt them that bad … that the family don't want anything to do with them in any way, shape or form, and the families, even if we ring up on their behalf, they just hang up on us and abuse us, and they just say, no, I'm not doing nothing for him. We've written him off. And so it's our job to actually make sure that we clothe them. In some cases, we've got to give him five shirts, five pants, five shorts, five this, and so we've got to have lots of clothes.
(ts 34, 27 March 2018)
The former carport for what is now House 2 has been converted by Shalom into what Mr Lyndon-James referred to as 'the big boys' gymnasium'. By 'big boys', Mr Lyndon-James means 'fellows over 100 kilo plus' (ts 37, 27 March 2018). One of the 'lifecontrolling issues' addressed in the Shalom House rehabilitation programme is eating disorders. Participants with other addictions may also be significantly overweight or obese and qualify the 'big boys' club'. A former champion body builder, who became addicted to cocaine and other drugs, was accepted into the Shalom House rehabilitation programme and has recently 'graduated' from it (see [81]-[82] below), trains the 'big boys' in the gym. He also develops fitness regimes and meals as part of participants' overview plans. Shalom requires 'big boys' in the Shalom House rehabilitation programme, both those who reside at the site and at other properties operated by Shalom, to undertake half an hour of gym work in the gymnasium at the site before morning devotionals and further exercise after work at night.
The former carport for what is now House 3 has been converted by Shalom into a 'community hang around area' 'for the fellows to congregate from all the houses' (ts 37, 27 March 2018). This area has a table tennis table, a pool table and a basketball hoop. This and the adjoining outside area is also used for barbeques. Although Houses 1, 2 and 3 also each have a pool table in the lounge, participants living in one living unit may not enter any of the other living units at the site (except for counselling in Unit 1a or for education, such as a first aid course which takes place periodically in House 3). The 'community hang around area' under House 3 therefore provides a place for the participants to congregate and socialise after voluntary or paid work or when not at church or an organised activity off-site on weekends.
As indicated in the agreed facts (28), the site can accommodate up to 35 participants in the Shalom House programme. As at 20 February 2018, the programme had 32 participants at the site. There are currently approximately 140 participants in the Shalom House rehabilitation programme, although it appears that some of these men are in Stages 4 and 5 (see [77]-[80] below) and reside in other approved accommodation.
It is mandatory for all participants in the Shalom House rehabilitation programme in Stages 1, 2 and 3 to reside at one of the properties operated by Shalom. As Mr Lyndon-James put it, 'it's nonnegotiable' (ts 49, 27 March 2018). There are currently 16 living units (10 at the Swan Valley Oasis resort, one at the Shalom House Equestrian Centre, two at a property in Forrest Street, Swan and Houses 1, 2 and 3 at the site) where Stage 1-3 participants live while in the programme. However, as indicated in the agreed facts (30(e)(ii)) and discussed further below ([68] and [70]), participants in the programme are deliberately rotated between these properties every three to six weeks.
Participants in Stages 4 and 5 are not required to live at a Shalom operated property. They are permitted to find alternative accommodation 'as long as it's a safe environment' (ts 9, 27 March 2018), such as being associated with the participant's workplace. Participants in Stages 4 and 5 may share such accommodation with each other or with graduates of the programme.
Alternatively, participants in Stages 4 and 5 may choose to stay at a Shalom operated property and, in return for board, 'they actually partake in being part of our program[me][,] still in helping us to raise up and disciple those who are coming behind them' (ts 9, 27 March 2018).
As Mr Lyndon-James said in the passage of his evidence set out at the commencement of these reasons at [1] above, there is, tragically,
a methamphetamine epidemic in our nation at the moment where people are smoking methamphetamines like they are cannabis but the effects of methamphetamines are completely different than the effects of cannabis, that they're actually destroying whole families and every rehabilitation or most rehabilitation centres across the whole of Perth are full with a three to six month waiting list …
(ts 24-25, 27 March 2018)
Since Mr Lyndon-James commenced what is now known as the Shalom House rehabilitation programme five to six years ago, it has become highly sought after. This is despite, or perhaps because, it is, as Mr Lyndon-James said in his witness statement, 'the strictest men's restoration centre in all of Australia'. He also said 'prison is easier than Shalom, and I know that's a fact' (ts 42, 27 October 2018).
Shalom receives approximately 30 telephone calls a day from individuals with addictions or other life-dominating issues or from family members who ask about entry into the programme. Two of Shalom's staff spend their time answering these telephone calls. As Mr Lyndon-James said, '[the staff member] must be certain that an individual seeking admission to the programme has reached rockbottom in their life before forwarding the individual on to me'. He estimates that at least 28 of the 30 daily telephone calls are turned down immediately. If a person is one of the two out of 30 telephoning daily who are forwarded on to Mr Lyndon-James, he requires them 'to demonstrate persistence and desperation'. To ensure this, he usually hangs up on the individual multiple times, with the expectation that they will call him back if they are desperate enough. This ensures that 'the individual is absolutely serious about entering the programme'.
Once an individual has demonstrated 'persistence and desperation', Mr Lyndon-James will hold a personal meeting with him and his family (if his family has not given up on him). Mr LyndonJames estimates that approximately 5% of the individuals who have a personal meeting with him are accepted into the programme. As indicated earlier, if Mr Lyndon-James accepts a person into the programme, then the person must start the programme that same day. He is not allowed to return home. Shalom organises what Mr Lyndon-James referred to as a 'SWAT Team' to clean up the participant's former residence and remove their belongings.
When a person is accepted into the programme, he is required to sign a number of documents, including a Power of Attorney appointing Mr Lyndon-James as the participant's Attorney. The Power of Attorney authorises Mr Lyndon-James to cause the participant's Centrelink support or employment income to be deposited into Shalom's trust account and applied to pay $300 a week to Shalom for board and any additional expenses incurred by Shalom for their participation, to deal with all Government and non-Government bodies on behalf of the participant and to have such dealings with the participant's family 'as are deemed by my Attorney to be in my best interests and to further the aims of my participation in the Programme'. The Power of Attorney remains in force until the participant graduates or otherwise leaves the programme.
Under the authority of the Power of Attorney, Shalom obtains a full credit history of the participant to determine what fines and other debts he owes, as many participants have lived a dysfunctional life up to that point and are unaware or have lost track of fines and other debts. Shalom will then make contact with creditors and seek to negotiate a reduction in the debt, or even the writing off of the debt, in light of the participant's circumstances, including their willingness to enter into the Shalom House rehabilitation programme. As a registered community service provider, Shalom is also able to make arrangements to convert some debts into community service.
As Mr Lyndon-James said in his witness statement, for an individual to be accepted as a participant in the Shalom House rehabilitation programme, 'they must demonstrate a willingness to surrender total control of their lives'. This statement does not involve any exaggeration or hyperbole; it is an accurate statement of fact. Participants in the programme genuinely surrender control of their personal, working, financial and spiritual lives to the Shalom House rehabilitation programme. This is clearly apparent from 'programme rules' which participants are required to sign and abide by 'without compromise'. If there is a serious or persistent breach of any of the programme rules by a participant, then he may be expelled from the programme. Over the last five years, Mr Lyndon-James has expelled approximately 220 participants from the programme (although many of them decided to leave and of those who decided to leave approximately 80% returned). The programme rules that each participant is required to sign and abide by are as follows:
As part of my commitment I specifically;
•agree to not invite or receive Visitors on the Property without prior permission
•agree to have no facial hair, piercings or unkempt hair or appearance
•agree to not leave the property without permission
•agree to not go anywhere unless accompanied by a delegated volunteer
•agree to comply with the no smoking policy
•agree to not having any alcohol or drugs on the property
•agree to not having the use of a mobile phone for the duration of my Shalom House stay
•agree to not swearing or using foul language
•agree that 100% honesty will be maintained regardless of the consequences
•agree to never manipulate, bend or exaggerating the truth, let your yes be yes and your no be no
•agree that open lines of communication will be maintained at all times, with complete transparency
•agree never to use intimidating or aggressive behavior and no unwanted physical contact at any time
•agree to maintain respect for all residents, staff and volunteers and never speak negatively about another person (back stabbing, gossiping)
•agree to not talking about drugs, crime or women
•agree never to use prison slang (language) or engage in conversations about prison life or affiliations or gang associations
•agree that there should be no secrecy
•agree that I will respond to problems, mistakes or issues with a good attitude.
•I agree to give permission to other residents to disclose any of my words, actions and the impact that I have on them, or on others, so that the truth can be brought to light.
•agree that if I see others who have behaved incorrectly, I will speak to them in an [sic] respectfully and in a way that will lift them up according to the values that we are being taught in the house
•agree to having access to only Christian TV and M movies only
•agree to Random Drug & Alcohol testing once a week or when requested
•agree to complete chores around house according to the roster as well as completing a working week
•Agree to all internal and external work being completed by me on a voluntary basis ''without pay'' for the duration of the stay at Shalom House.
•agree to and understand that any Paid work that I do receive, is a privilege and NOT an expectation
•agree to undertake counselling, understanding that Christian values form the basis of some of the Counselling
•agree to see a mental health team member (Psychiatrist)
•agree to participate in daily devotional
•agree to participate in all group activities
•agree to attend church every Friday, Saturday and Sunday, understanding that I am not required to be a committed Christian to attend
•agree to attend the men's Group every Tuesday night
•agree to be out of bed by 6.30am weekdays
•agree to be out of bed by 9am weekends
•agree to pay $300 per week board(which includes all food and other outgoings for the house)
•agree that the menu and food purchases are to be the final decision of a delegated staff member
•agree to pay for two weeks board in advance
•agree that all my money will be held in trust by West Australian Shalom Group Inc.
•agree to leave the room I live in, in the same condition as it was, when I moved in
•agree to maintain a clean and tidy living environment in the house and property
•agree that what has to be done to change my life is my responsibility and that it can only be done by me through my own choice.
•agree to take whatever action necessary to change my life in a positive way
•agree that I will listen to, be open to, reflect on and absorb as much of the guidance provided to me as possible and then apply it to my life. This advice and guidance should be used to change your life and attitude.
•agree I will submit to all levels of authority that exists within the Shalom management and house leader structure
•agree to respect, support and honour all the Leadership at Shalom, as well as respect and accept the decisions they make even if I do not agree with them at the time, or understand the decisions, or see the reasons why.
•agree to not argue or question or challenge decisions that are made by Shalom management or delegates
•Any damage to property of [sic] vehicles caused by the negligence of the resident shall remain the responsibility of that resident
•Agree to leave the property immediately if requested
•Agree that if requested to leave- that all items will be left in our care until we can organise an appropriate time to pack and return them
If a participant wishes to go on a home visit, or has a medical issue and wishes to see a doctor, dentist or other health professional, or has a question concerning a financial issue or any other matter, they are required to write their request on a colour-coded form (white for general inquiries, yellow for medical inquiries and green for financial inquiries) and leave it in the communications slip box at the site. Each property operated by Shalom where participants live has a communications slip box.
The resident care officer for the site collects the participants' forms from the communications slip box by 7.45 am each weekday morning and takes them to the Shalom office building at No 6571 West Swan Road, West Swan. The resident care officer then hands the relevant coloured forms to the relevant staff members to process that day. By 3 pm each weekday, slips with responses to the participants' requests are placed on the desk of the resident case officer and by 4 pm each day the response to each inquiry is placed by the resident care officer into the relevant participant's pigeon hole located on the wall outside the store room at the site.
The process described in the preceding two paragraphs also evidences and reflects the surrender by the participants of total control of their lives. They are not permitted to make arrangements or appointments (even in relation to matters concerning their own health) outside the site. They may only request Shalom to make arrangements or appointments for them. Indeed, participants in Stages 1 and 2 have no means of communication with people outside the site, as they are not permitted to have a mobile telephone. Participants in Stage 3 are permitted to have a mobile telephone, but must lock it away and not use it while at the site.

The Shalom House rehabilitation programme originally had three stages. About two years ago, Mr Lyndon-James added Stages 4 and 5 prior to graduation of participants from the programme. As indicated in the agreed facts (30(a)), Stage 1 commences with what Mr LyndonJames described as 'a cold turkey detox' for those participants who are addicted to methamphetamine and other drugs. As Mr Lyndon-James said in evidence:
… [W]e're a cold turkey detox facility. We don't use drugs and substances in any way, shape or form, we are cold turkey because what happens is the chemical or the drug, it actually covers all the stuff that we need to see. So we need to actually take the chemical off the person and they cold turkey detox. So they're living in a rehabilitation centre under a really close supervised environment, detoxing off of drugs with experienced people who have walked through the walk, that come alongside them to help them to cold turkey detox off their stuff and as they do …
But when you put a person in a residential place, it's not just a place to sleep and put your head in and live, you're coming down [off] drugs for crying out loud. You don't sleep for two weeks. Some blokes don't sleep for two/three weeks. Some blokes come in with speed psychosis and think everything is under surveillance and they're looping out and some of my fellows have to come alongside them and say, 'Hey, come on bro, I went through that, (indistinct) was all over the place' but they're in an environment where everyone understands what they're going through because we've all walked through it, we've all been through it and we come alongside each other until we get [through] the detox period. And when all of a sudden, when all the drugs finally wear off, when the lithium and the (indistinct) and the olanzapine and the Valium and the heroin, the speed and all the other stuff wear off, all of a sudden, one day you just wake up and you had your first two hour sleep and then a four hour sleep and then you get to six [hours'] sleep and then one day, you get woken up in the morning. When you get woken up in the morning, that's a pretty good place to be. They haven't had that for 10 years.
(ts 28-29, 27 March 2018)
Following detoxification, Stage 1 involves intensive observation and assessment of each participant and their life issues, circumstances and problems. This may be termed the 'diagnostic' phase of the programme. Mr Lyndon-James used the analogy of a mechanic taking a car apart, in order to determine what is wrong with it, before it can be put back together again:
So what happens with stage 1, when the person first comes in the house, it's a bit like when you take your car to a mechanic and the mechanic the first thing the mechanic has to do is pop the bonnet or actually get in the car to find the lever to pop the bonnet and then he has to go over the vehicle to find out what it is that's wrong with the vehicle. It's the same with us with the person and when we get a person, we've got to put him in the house and we've got to live with that person on a daily basis and we've trained our leaders our 1ICs, our 2ICs and our 3ICs to look for certain things: patterns, behaviour, ways to communicate, trigger points that cause them to do things wrongly, that causes them to make wrong decisions. So it helps us in stage 1 program[me] part of the program[me] is to find out what it is that we're dealing with. Not only does it help us to find out the faults and the flaws and the problems within the individual and their standard of living, for example a lot of them come from a place where they just don't clean, so we've got to teach them to clean. A lot of them come from a background where they don't cook, so we've actually got to teach them to cook. Some we have come in who have there's a word for it and I'm not too sure they have an extremely high standard and they're really anal in how they are in their standard of living but it's too high and some come in with a really low standard, where they just don't fold clothes, everything just goes on the floor. And so basically, we've got to rehabilitate them, disciple them on how to make their bed, how to fold their clothes, how to wash their dishes, how to clean the floor and how before you go to work, how you should leave your house. We've got to teach them in that first stage on how they communicate to each other and how they respond to when someone communicates disrespectfully to them, how they respond in a way that would bring about a good outcome. We spend a lot of time over the three months actually putting into them and teaching them and equipping them. Not only that, we also find out what their family structures are. Not only that, we find out where they are financially personally, how much debt that they carry. Not only that, we find out what how much of a mess they've made amongst their family; who left, out of their family, is talking to them, their mum or their dad or their brother or their sister, their wife, their kids. Is anything left of their family unit? We also find out is there any general issues, stuff like Cash Converters and do they have a car on the side of the road or a house that needs cleaned up? And also, in that first stage of the program[me], we're trying to find out, 'What do you want to do with your life, mate?' But that has happened at the two month stage of the program[me], we will sit them down so as we're teaching them all these skills, as we're discipling them of all the skills, as we're equipping all these skills, as we live with them on a daily basis, as we look after the car like I said, been put in the mechanic shop we're actually finding out all these things and then we're fixing all these things as we find these things out. And so basically, we're finding out what it is that we have to deal with, we're fixing it as best as we possibly can and then when we get into a point where we think, 'Okay. We've fixed as much as we can fix. We've found out what we could find out, we've run the diagnostics machines over the person, we've clanked the wires on the side of the head, we've got a good read out now, we understand.' Now, what we've got to do is somehow put them in a position where they can put into practice what it is that we've learned as we've lived with them and come alongside them over the three months. We want to put them in a position where they have to put that into practice.
Okay. So this I will come back to another question but I just want to ask you. You talk about this process of the diagnostics in terms of understanding the question; where does that take place? --- It takes place in the house, it takes place in the way that they respond and when you put two people who don't like each other in a room together, it actually brings out the worst in them, which is a lot of I don't like to use the analysis but it's like having a [.]38 revolver that holds six shells. There's trigger points that causes people to react a certain way and to explode in other words, to pull the trigger to stick a needle in their arm, to pop a pill, to have a drink and there's trigger points that lead up to a person to actually do that and how we find out what those trigger points are is by putting them into a room with somebody else that they don't actually get along with and so we find somebody that they don't get along with, we put them in a room and as those trigger points come up, we help them to deal with the trigger points before the trigger or the bullet gets put in the chamber. If we can teach them, all of a sudden they get to a point where all of a sudden, they don't believe that there's any ammo left, therefore the gun won't fire, therefore the gun won't fire, therefore they won't stick a pick in their arm which means we feel that we've given them the tools that they need to not actually stick that pick in their arm or to pull the trigger.
(ts 17-19, 27 March 2018)
Furthermore, during Stage 1, Shalom counsellors and leaders determine the educational and training needs of each participant so that when he leaves the programme he will be able to live a functional and productive life:
We identify if they can't read properly, they can't write properly, they can't cook properly, and they can't even clean their teeth properly, they don't even make their bed properly, they don't even clean their room, they don't even put underarm deodorant [on] …
(ts 44, 27 March 2018)
In addition to Shalom's paid staff and those participants in Stages 4 and 5 who mentor participants in Stages 1 - 3 (or as Mr LyndonJames put it, 'help us to raise up and disciple those who are coming behind them' (ts 9, 27 March 2018)), there are over 70 volunteers who assist participants in the programme with their time and life experiences. For example, there are two ladies who come to the site on Wednesday each week to teach participants how to cook, 'because a lot of the blokes don't know how to cook' (ts 9, 27 March 2018).
During the first part of Stage 1, Shalom keeps each participant's wallet, key cards and identification documents in a safe. The participants are not allowed to have access to them. As indicated earlier, participants in Stages 1 and 2 are not allowed a mobile telephone and while participants in Stage 3 are permitted a mobile telephone if required for work, they must lock it away when they are at the site or at another Shalom property where they reside and must not use the telephone while they are at the property.
With the benefit of the intense 'diagnostic' process in Stage 1, Shalom develops an individual participant overview plan for each participant to address their particular problems and issues. Because each participant is different, each plan is, in essence, a different programme.
Participants commence volunteer work provided or facilitated by Shalom while they are in Stage 1 and continue to do this type of work in Stages 2 and 3, although increasingly transitioning into paid work facilitated by Shalom. As Mr Lyndon-James said in evidence:
Everybody in our program[me] does physical work; we're men and we're designed to actually work. … they actually work but they work at their capacity, whether it's raking leaves under a tree, whether it's out on the oval pulling weeds, whether it's mowing a lawn, everybody in our program[me] works. We're a working rehabilitation centre. We explain to everybody when they come in our program[me] that, 'From the day you come in here, you work. You're not going to get paid from the day you come in here, this is not here for paid work but we are a working rehabilitation centre. You're not here to make money, you're here to change your life. At the three month stage, what we're going to do is [we'll] try and get you paid work but that paid work is not a privilege it's not an expectation, it's an actual privilege. You don't assume that just because you get to three months, that you're going to get that paid work'.
(ts 19-20, 27 March 2018)
Shalom provides participants with varied opportunities for volunteer work. Shalom operates an Equestrian Centre at a nearby property where it agists up to 32 horses and participants who are interested in working with horses and maintaining that facility can work there. Shalom operates three community service crews with vehicles, being two 22seat buses and a seven seater truck, each with a trailer, which are sent to local primary schools for the participants in the programme to do weeding, mulching or cleaning and to roadsides and other public places to do cleaning and picking up rubbish. Shalom also operates a business called 'Shalom Works' which has five vehicle crews, namely a landscapes crew (which constructs pergolas and does building maintenance and construction), a 'soft scapes' crew (which does lawn mowing, tree lopping, pruning, gardening and maintenance), a limestone and paving crew and two maintenance crews. The five 'Shalom Works' vehicles are driven by Shalom's employees and participants are allocated to work in a particular crew depending on their interest and experience in such work. All of the income generated by Shalom Works goes to running the Shalom House rehabilitation programme.
Further to the agreed facts (30(u)(ii) and (iii)), Shalom has developed partner arrangements with approximately 100 Partner Employers who are aware of participants' backgrounds and who wish to employ them in paying positions. These Partner Employers pay Shalom $30 an hour for each participant, of which the participant receives a minimum wage of $22.50, and Shalom uses the remainder for insurance, workers' compensation, payroll and a handling fee which helps to fund the Shalom House rehabilition programme. At the date of the hearing, six residents at the site were working all days other than Mondays for a Partner Employer facilitated by Shalom. Under each participant overview plan, money earned from private employment through Shalom is used by participants to pay off debts and help them set up for a productive life after graduation. As Mr Lyndon-James said in evidence, 'every single resident leaves 100 per cent debt free' (ts 27, 27 March 2018.
As indicated in the agreed facts (30(e)(i)), in Stages 1, 2 and 3, each participant is assigned a bedroom that is usually shared with another participant or participants 'for the purpose of teaching cooperation and promoting a family environment'. As also indicated in the agreed facts (30(e)(ii)), every three to six weeks, the participants are assigned a new bedroom in a different House at the site or at another living unit operated by Shalom at a different property, to prevent the participant from becoming too accustomed to a single living environment and to encourage him to build relationships with other participants.
There are a mix of participants within each living unit throughout the various stages of the programme, from new arrivals to those close to leaving the programme and re-entering mainstream society. Mr Lyndon-James explained that, as he developed the programme, he realised that it is beneficial to put participants at different stages of the programme together and that it is also beneficial to periodically move participants around to different living units. He explained the reason why it is beneficial to have a mix of stages in each living unit as follows:
… when I actually moved to [the site], I realised that by actually putting stage 1s, stage 2s, and stage 3s all under the one roof, it actually created its own force of momentum. The stage 1s could see clearly how far forward the stage 2 had progressed, and the stage 1s wanted what the stage 2s had, and they looked up to the stage 2s. And the stage 2s started feeling worth about themselves knowing that they had actually progressed, because they couldn't see how far they had progressed, but the stage 1s can see it and they started giving back into the stage 1s that was coming behind them. And not only that, we had added stage 3 by then, which caused us to get the house, and the stage 2s looked to the stage 3s, and instead of mixing them all up, having stage 1, stage 2, stage 3 all in three different properties, by having all the different stages all in the one house, it all actually helped to create its own force of momentum …
(ts 41, 27 March 2018)
Mr Lyndon-James explained the reason why it is beneficial to move participants around in order to challenge them and to address their various issues and problems as follows:
So what I did is I started purposely moving my fellows around, and finding those who didn't like each other, and I stuck them in the same room, and and when I stuck them in the same room, it brought about all the triggers to the surface, in other words, the stuff that I was looking for inside them that I know that I had to teach them to deal with, which were the triggers that caused them to keep sticking picks in their arms. So I found that the more that I started moving them around, and the more that I started putting those who hated each other's guts in the same room, it actually forced them to deal with the issues, which were the underlying issues which caused them to use the drug, pop the pills, stick the pick in arm, or drink the drink. …
(ts 42, 27 March 2018)
As indicated in the agreed facts (30(e)(v)), participants in each residential unit are expected to keep their own bedroom and, jointly, all living areas, clean and orderly. There is a whiteboard in each of the three Houses with a roster of which participant is to do which cleaning task. The participants also cook meals for the 'household' represented by that living unit on the basis of a roster.
All participants are required to be out of bed at 6.30 am each day between Monday and Friday. After breakfast, the participants in each House gather together at the dining table for 'devotionals', which involves readings from the Christian Bible and discussion about issues raised by the readings. At about 9.20 am, participants in Stages 1 and 2 (and Stage 3, if they do not have their own vehicle) are conveyed by buses or other vehicles operated by Shalom from the site (and the other living units operated by Shalom) to the 'works depot' at the corner of Park Street and West Swan Road, where the participants are distributed to other transport to be taken to work sites for volunteer or paid work. The working day finishes at approximately 5.00 pm. Participants in Stages 1 and 2 (and 3 if they do not have a vehicle) are then driven from the work sites to the works depot and then to the location of their living unit.
On Tuesday evenings, all participants in the Shalom House rehabilitation programme are transported by buses operated by Shalom to a 'Shed Meeting' at a property operated by Shalom at No 111 Blue Gum Road, Beechboro. Other men also attend the Shed Meeting. Average attendance is around 220 people each week. Mr LyndonJames explained:
The shed is where we do a men's night where we try to disciple men to be men. As men, we have a responsibility to lead our homes. …
… We disciple men to be men and we teach them how to be a good dad, we teach them about talk about the struggles that you have and we get blokes to shout testimonies about what they haven't done and mistakes in their life and we try to learn from each other and we do studies and all that sort of stuff.
(ts 16, 27 March 2018)
The Shalom House rehabilitation programme is a faith-based and, in particular, a Christian faith-based rehabilitation programme. As indicated earlier, each day commences after breakfast with 'devotionals'. The televisions at the site are set up so as to only receive broadcasts from a Christian television station. There is no freetoair television available at the site. Participants are only permitted to listen to a particular familyoriented radio station. The leaders regularly take out particpant's earphones to check that they are tuned to that station only.
On Friday evenings, Saturdays and Sundays, participants are required to attend three church services, in different Christian traditions, which they are taken to in buses operated by Shalom. Although a Christian faith-based programme, and although Mr LyndonJames is an ordained Minister with his own Church, the programme does not wish to direct participants to any particular denomination of the Christian faith. The Churches that are attended by participants therefore vary each week.
On Saturdays, the participants are also taken to planned and supervised recreational activities, including ice-skating, roller-skating, cinema, Adventure World, putt-putt, the beach, and so on. As with Church attendance, participants are required to attend each of these activities (unless they are on approved home leave) on the basis that:
It's one in, all in. What's relevant to one person is relevant for another.
(ts 15, 27 March 2018)

Moreover, the Shalom House rehabilitation programme uses the residential or habitation component, including who a participant is required to share a bedroom with, as a means not only to teach cooperation and communication between participants and to promote a family environment, but also, deliberately, to find out and address each participant's 'trigger points', so that when they return to the community they do not return to drug use when they face the same 'triggers'. As Mr Lyndon-James said in the passage set out at [60] above:
It takes place in the way that they respond and when you put two people who don't like each other in a room together, it actually brings out the worst in them, which is a lot of I don't like to use the analysis but it's like having a [.]38 revolver that holds six shells. There's trigger points … to stick a needle in their arm, to pop a pill, to have a drink and there's trigger points that lead up to a person to actually do that and how we find out what those trigger points are is by putting them into a room with somebody else that they don't actually get along with and so we find somebody that they don't get along with, we put them in a room and as those trigger points come up, we help them to deal with the trigger points before the trigger or the bullet gets put in the chamber. … we feel that we've given them the tools that they need to not actually stick that pick in their arm or to pull the trigger.
The City made a number of submissions as to why the Tribunal should not characterise the residential or habitation component of the development as an incidental activity or 'incidental use' for the purposes of cl 4.3.3 of LPS 17. First, referring to the definitions of 'Single House', 'Grouped Dwelling' and 'Multiple Dwelling' in App 1 of the RCodes, the City submits that '[t]he definitions are obviously drafted on the understanding that the majority of the population lives in Single House, Grouped Dwelling or Multiple Dwelling, and that habitation of Residential Buildings will commonly be for motives attaching to special needs or desires'. The City submits that '[t]o interpret habitation as ancillary to such motives, and hence to be disregarded, would leave Residential Building with almost no work [to do under] LPS 17'. The City, therefore, submits that Shalom's argument 'is too broad [and] sweeping'.
However, LPS 17 does not negate or qualify the planning law concept of incidental activity. Rather, as I said in G & G Corp Asset Management Pty Ltd and Presiding Member of the Metropolitan East Joint Development Assessment Panel at [17], '[the] provisions of LPS 17 give statutory expression and force to the established planning law concept that an incidental, ancillary or subordinate activity to a dominant land use is not in itself a land use requiring development approval, but rather is "considered to be part and parcel of the primary use"'. For the reasons set out earlier, in my view, Shalom's argument is not 'too broad [or] sweeping', but is correct in the particular facts and circumstances of this case.
Secondly, the City submits that 'the fact that there is a wider purpose behind the habitation does not negate habitation as a purpose for the interpretation of the definition [of 'Residential Building']'. However, the matter at hand requires the proper land use classification of the proposed development. Although the residential or habitation component of the development falls within the 'temporary limb' of the definition of 'Residential Building', as a matter of fact and degree, in the circumstances of this case, the temporary residence or habitation of participants at the site is not a separate and distinct land use from the use of the site as a rehabilitation centre. Rather, the habitation and residence is an incidental activity or 'incidental use' for the purposes of LPS 17 to the use of the site as a rehabilitation centre.
Thirdly, the City submits that 'the mere fact of a wider purpose/motive behind the purpose of habitation should not render an unlawful use lawful'. I accept this submission. However, my determination that the residential or habitation component of the development is not a separate and distinct land use, but rather is an 'incidental use' for the purposes of LPS 17, is not based on 'the mere fact of a wider purpose/motive behind the purpose of habitation'. Rather, it is based on the facts and circumstances of this case referred to in the reasoning set out above.
Fourthly, the City submits, correctly (see G & G Corp Asset Management Pty Ltd and Presiding Member of the Metropolitan East Joint Assessment Panel at [47]), that the scale of an activity is relevant to determining whether it is merely ancillary, incidental or subordinate to another use (or an 'incidental use' for the purposes of cl 4.3.3 of LPS 17) or rather is in itself a separate and distinct land use that is proposed. The City submits that the habitation 'is not minor in scale in terms of architecture and building space, nor is it minor in terms of duration' and that the number of participants residing at any one time at the site 'is not minor'.
However, whereas the area used for habitation is not minor in scale in comparison to the architecture and building space, it is incidental to the use of the site as a rehabilitation centre. For reasons given earlier, what occurs in the bedrooms and other parts of the 'House' on the site is not temporary residence and habitation as a separate and distinct land use from rehabilitation centre use of the site. Rather, in the particular facts and circumstances of this case, the residence and habitation is part and parcel of the rehabilitation centre use. Furthermore, the fact that up to 35 participants can be accommodated at the site does not mean that the scale of the residence and habitation component of the development is such that it is other than incidental, ancillary or subordinate to the use of the site as a rehabilitation centre. As discussed earlier, the only reason any of the up to 35 men reside at the site temporarily is because they are participants in the Shalom House rehabilitation programme conducted at the site.
Fifthly, the City submits, correctly (see G & G Corp Asset Management Pty Ltd and Presiding Member of the Metropolitan East Joint Assessment Panel at [45]), that amenity impacts of an activity are relevant to determining whether it is merely incidental, ancillary or subordinate activity (or an 'incidental use' for the purposes of cl 4.3.3 of LPS 17) or rather is in itself a separate and distinct land use that is proposed. The City referred to the 'low density' nature of the area and implicitly to the objective of the RuralResidential zone to 'provide for low density residential development and associated RuralResidential activities in comprehensively planned estates'. However, the City did not point to any particular aspect of the development which it says involves any adverse amenity or other adverse planning consequence. The City presented no planning evidence. Indeed, as indicated earlier, it has not yet undertaken a merit-based assessment of the proposed development.
Sixthly, the City submits that many of the activities undertaken by participants at the site are normal 'incidents' of residence or habitation. The City submits that the participants eat, sleep and recreate at the site as would a temporary (or even permanent) resident in their home. The City submits that the participants engage in devotionals in the same way as a religious person may pray or make a blessing before or after a meal in their own home.
However, as counsel for Shalom submits, 'what takes place at Shalom House cannot be understood as being normal habitation if we compare it with a single house, grouped dwelling, multiple dwelling'. As counsel submits, '… when one understands, for example, the loss of freedom in terms of not being able to leave the property, having to leave at set times, and things of that nature … those things are not incidents of habitation and they are simply examples of the completely different nature of the use that is taking place here' (ts 73-74, 28 March 2018).
Finally, the City refers to the express exclusion of 'a hospital or sanatorium, a prison, a hotel, a motel or a residential school' from the definition of 'Residential Building' as a legislative indication that, were it not for this express exclusion, these uses would be included within the land use class 'Residential Building', and as a legislative indication that, consequently, so is a residential rehabilitation centre, such as the use of the site.
However, the express exclusion of certain land uses from the definition of the land use class 'Residential Building' does not mean that an incidental residential aspect of another land use must therefore be characterised as a separate and distinct 'Residential Building' land use when, as a matter of fact and degree, the residential aspect is merely an incidental, ancillary or subordinate activity to another land use.
It follows that the development is not properly classified as 'Residential Building' under LPS 17. The proposed use is, therefore, not prohibited under the Scheme.

Is the use properly classified as 'Community Purpose' (and therefore capable of approval) under LPS 17?

It is common ground that if the use of the site is not properly classified as 'Residential Building' under LPS 17, then the only other land use class listed in the Zoning Table to LPS 17 that the proposed use could be classified as is 'Community Purpose'.
As indicated earlier, the term 'community purpose' is defined in Sch 1 of LPS 1 as follows:
''community purpose'' means the use of premises designed or adapted primarily for the provision of educational, social or recreational facilities or services by organisations involved in activities for community benefit[.]
In City of Swan v West Australian Shalom Group Inc. BanksSmith J observed and held as follows [101]:
It is necessary to return to the elements of the definition. The City's submission that the proper approach to the definition is to consider its particular terms is clearly correct. The parties agreed and proceeded on the basis (leaving aside the issue of locality) that the terms required that the premises are designed or adapted primarily for the 'use'; the use is the provision of educational, social or recreational facilities or services; that such facilities or services were to be provided by organisations involved in activities for community benefit.
Shalom submits that the proposed development is properly classified as 'Community Purpose', because it involves 'the use of premises [at the site] … adapted primarily for the provision of educational … [and] social … services by [an] organisation involved in activities for community benefit'.
For a number of reasons that I will address below, the City submits that the proposed development is not properly classified as 'Community Purpose'.
In my view, the proposed development is properly classified as 'Community Purpose' under LPS 17 because:
•the premises at the site are 'adapted' primarily for the use of the site as a rehabilitation centre;
•the use of the site as a rehabilitation centre is or involves the provision of 'educational services' and 'social services'; and
•the educational services and social services are provided by an organisation involved in activities for 'community benefit'.
The words and expressions 'adapted', 'educational services', 'social services' and 'community benefit' are not defined in LPS 17 or elsewhere in the planning legislation. These are ordinary English words and bear their natural and ordinary meanings.
The verb 'adapt' means 'to make suitable to requirements; adjust or modify fittingly' (The Macquarie Dictionary, 6^thed, 2013, page 16). Contrary to the City's submission, the word 'adapted' is not restricted to a 'structural concept'. The word 'adapted' does not require any structural, or even physical, change to the premises. However, as Shalom submits, and as I found earlier, '[t]here are physical adaptions' (ts 34, 28 March 2018). In particular, as I found at [39] above, Shalom has physically made suitable to requirements and adjusted or modified fittingly, and therefore 'adapted', the former carport for what is now House 1 primarily for the use of the site as a rehabilitation centre by converting it into an enclosed store room by the installation of panels and a door which can be locked, by adding a large number of power points and by fitting it out with shelves and racks.
Other examples of the premises at the site having been made suitable to requirements or adjusted or modified fittingly, and therefore 'adapted', by Shalom primarily for the use of the site as a rehabilitation centre are:
•the conversion of the former carport for what is now House 2 into the 'big boys' gymnasium' (referred to at [43] above);
•the conversion of the former carport for what is now House 3 into a 'community hang around area' (referred to at [44] above);
•the conversion of the former stables into a nursery (referred to in the agreed facts (25(c));
•setting up and setting aside the counselling room in former kitchen area of Unit 1a (referred to at [37] above); and
•the communications slip box outside the counsellor's room and the pigeon holes for each participant located on the wall outside the store room (referred to at [56]-[57] above).
Furthermore, and quite apart from these physical or other adaptions of the premises referred to in the preceding two paragraphs, the whole of the site has been made suitable to requirements and adjusted or modified fittingly, and therefore 'adapted', by Shalom primarily for the use of the site as a rehabilitation centre, because, as Shalom submits:
… the manner of the use has, in effect, adapted the premises from one of a group dwelling to … community purpose … including, of course, effectively having what are three grouped dwellings used as one. Now, the walls haven't been removed but the whole structure operates as a single entity.
(ts 34, 28 March 2018)
The adjective 'educational' means 'relating to education' and 'tending to educate' and the verb 'educate' relevantly means 'to develop the faculties and powers of by teaching, instruction, or schooling; qualify by instruction or training for a particular calling, practice, etc.; train' (The Macquarie Dictionary, page 472). The noun 'service' has a great many meanings. Relevantly, in my view, 'service' means 'the organised system of apparatus, appliances, employees, etc., for supplying a public need' (The Macquarie Dictionary, page 1337). The expression 'educational services', therefore, refers to organised systems for teaching, instruction or training.
The City submits that the adjective 'social' relevantly 'refers to gatherings for gregarious reasons; not to "social services" such as unemployment, mental health, antenatal exercises, etc.'. However, in my view, 'social', when used in the definition of 'community purpose', includes both of these meanings (although the provision of antenatal exercises is an educational service, rather than a social service). The relevant meanings of the adjective 'social' are:
1. relating to, devoted to, or characterised by friendly companionship or relations: a social club. … 4. living, or disposed to live, in companionship with others or in a community, rather than in isolation. [and] 7. denoting or relating to activities designed to remedy or alleviate certain unfavourable conditions of life in a community, especially among the poor: social work. …
The expression 'social services', therefore, refers to organised systems relating to companionship or relations with others or in a community or designed to remedy or alleviate certain unfavourable conditions of life in a community. This ordinary meaning of the expression 'social services' is also consistent with the element of the definition of 'community purpose' that the social services must be provided by organisations involved in activities for 'community benefit'. The meaning of the expression 'community benefit' is discussed below. An organisation involved in activities for community benefit may well provide 'social services' relating to companionship or relations with others or in a community or designed to remedy or alleviate certain unfavourable conditions of life in a community.
In my view, the use of the site by Shalom as a rehabilitation centre for men with serious drug and other addictions and other lifedominating issues clearly is, or involves, the provision of an organised system designed to remedy and alleviate certain unfavourable conditions of life in a community, namely drug and other addictions or other lifedominating issues, and an organised system for teaching, instruction or training of participants to enable their rehabilitation from their addictions or other life-dominating issues and to restore their lives so as to be able to live functional and productive lives in the community.
The entire purpose and focus of the Shalom House rehabilitation programme is to remedy and alleviate drug and other addictions and other lifedominating issues affecting the participants. Furthermore, as found at [61] above, during Stage 1, Shalom counsellors and leaders determine the educational needs of each participant so that when he leaves the programme he will be able to lead a functional and productive life. The identified educational needs of each participant are then addressed in his individual participant overview plan developed by Shalom.
The educational services provided by Shalom to participants at the site include reading, writing and other courses for participants who require it, a first aid course which takes place periodically in House 3 and informal education provided by volunteers, such as the two ladies who come to teach the men cooking skills each week. Furthermore, educational services are provided to participants as part of the use of the site as a rehabilitation centre simply by the men experiencing life in a functional, productive and co-operative living environment. As Mr Lyndon-James explained the passage of his evidence set out at [60] above, '[W]e spend a lot of time over the [first] three months actually putting into them, and teaching them and equipping them' with communication and general living skills, such as cooking, cleaning and maintaining a house. As Mr Lyndon-James also said in that passage, after the diagnostic phase, the programme seeks to 'put them in a position where they can put into practice what it is that we've learned as we've lived with them and come alongside them over the three months'.
In my view, therefore, the premises at the site have been 'adapted' by Shalom in the ways referred to earlier primarily for the provision of educational and social services in the use of the site as a rehabilitation centre.
Furthermore, in my view, Shalom is self-evidently and significantly an organisation 'involved in activities for community benefit'. The noun 'community' relevantly means:
all the people of a specific locality or country: the new transport service is for the benefit of the whole community.
(The Macquarie Dictionary, page 307)
The noun 'benefit' relevantly means 'anything that is for the good of a person or thing' and 'a beneficial outcome' (The Macquarie Dictionary, page 132). The expression 'community benefit' therefore means anything that is for the good of, or a beneficial outcome for, all the people of a specific locality or country.
As Mr Lyndon-James said in the passage of his evidence set out at the commencement of these reasons at [1] above:
[W]e actually have a methamphetamine epidemic in our nation at the moment where people are smoking methamphetamines like they are cannabis but the effects of methamphetamines are completely different than the effects of cannabis, that they're actually destroying whole families and every rehabilitation or most rehabilitation centres across the whole of Perth are full with a three to six month waiting list …[.]
(ts 24-25, 27 March 2018)

Seeking to address the 'methamphetamine epidemic in our nation' by rehabilitating methamphetamine and other drug users obviously involves something that is for the good of, and a beneficial outcome for, the community of Perth, the State and the country. Contrary to the City's submission, the benefit is not simply 'to individual inmates' (by which term the City referred to participants in the Shalom House rehabilitation programme living at the site). I also do not accept the City's submissions that '[t]he benefit to those individuals is not also a benefit for either the local or any wider community, other than in the most tangential and general manner' and that there is, at most, merely an 'incidental flow-on benefit to the community'.
Certainly, there is individual benefit to a person who is successfully rehabilitated from drug use. There is also benefit to the person's family which has had to suffer and in some cases has been 'destroyed' by their family member's drug use. Furthermore, in my view, rehabilitation of a drug addict involves significant benefit to the wider community which is subjected to the criminal and anti-social consequences of drug use.
Mr Lyndon-James gave evidence that he has 'witnessed many users become drug dealers to fund their expensive habit'. As he said, the Shalom House rehabilitation programme 'prides itself in not only assisting men with fighting their drug addiction, but also removing drug dealers from the streets'.
Furthermore, the Tribunal takes judicial notice of the fact that because methamphetamine and other illicit drugs are expensive, drug addicts commit other criminal offences, including burglaries and other property crimes, to fund their addictions. Also, as Mr Lyndon-James said, 'the effects of methamphetamines are completely different than the effects of cannabis'. Indeed, the Tribunal takes judicial notice of the fact that methamphetamine use affects the user's behaviour and has anti-social consequences which adversely affect the wider community, as well as police and medical services.
Consequently, the Shalom House rehabilitation programme involves significant community benefit. It is hardly 'tangential' or merely an 'incidental flow-on benefit to the community'.
The City also submits that Shalom is not involved in activities for 'community benefit', because the programme 'does not have any local community element men are accepted from anywhere in the State'. Indeed, the evidence indicates that participants are also accepted from interstate. Senior Counsel for the City submits that, in order to satisfy the element that Shalom is 'involved in activities for community benefit', it is necessary for Shalom to have presented evidence which it did not - that at least some of the participants in the programme at the site are from the City's local government area. Without such evidence, the City submits, 'there is no evidence of any local content whatsoever' (ts 61, 28 March 2018). Because of the absence of evidence showing that men from the City's local government area participate in the programme at the site, and because the programme is open to people from across the State and interstate, 'it cannot be said [that Shalom is] an organisation that is involved in activities for community benefit'. The City submits that '[t]o determine otherwise is to disregard the word "community"'.
However, LPS 17 does not, expressly or by implication, require that the 'community benefit' must include benefit to the community resident in the City's local government area, much less does it require evidence that at least some of the participants in the programme at the site are residents of that area. The definition of 'community purpose' uses the expression 'community benefit', not 'local community benefit'. As Banks-Smith J said in City of Swan v West Australian Shalom Group Inc. at [107], 'where used in the expression "community benefit," it is not limited to a group of persons with a community of interest who must reside in or be associated with a particular locality'.
Furthermore, and in any case, although it is unnecessary for Shalom to establish that it is involved in activities for local community benefit, as opposed to community benefit, I consider that the Shalom House rehabilitation programme is for local community benefit in that the 'methamphetamine epidemic' does not know or respect local government boundaries. The 'methamphetamine epidemic' and its criminal and antisocial consequences affects the local community of the City of Swan as it sadly affects local communities throughout the State and beyond. Furthermore, participation in the programme is open to people who reside in the City's local government area. Shalom is therefore an organisation involved in activities for local and wider community benefit.
Furthermore, as Shalom submits, it is an 'organisation involved in activities for community benefit', including local community benefit, because, as part of the volunteer work that participants in the Shalom House rehabilitation programme are required to do in Stages 1, 2 and 3, the men perform community work at local primary schools, roadsides and other public places.
Finally, the City submits that the premises at the site are not designed or adapted 'primarily' for the provision of educational, social or recreational facilities or services, because '[a]t most, it might be said that the use of Shalom House incidentally affords some education, social interaction or recreation to inmates' (that is, participants). However, the use of the site for the provision of social and educational services by Shalom to the participants in the Shalom House rehabilitation programme does not involve the 'incidental' provision of some education, social interaction or recreation to participants. The rehabilitation of men in the Shalom House rehabilitation programme is provided, in large part, by the social and educational services provided to them at the site as part of the programme.
As the use for which development approval is sought is properly classified as 'Community Purpose' under LPS 17, the development is capable of approval in the exercise of planning discretion under the Scheme.

Is the use an innominate or unlisted use (and therefore capable of approval) under LPS 17?

As indicated earlier, cl 4.4.2 of LPS 17 states as follows:
If a person proposes to carry out on land any use that is not specifically mentioned in the Zoning Table and cannot reasonably be determined as falling within the type, class or genus of activity of any other use class the local government may
(a)determine that the use is consistent with the objectives of the particular zone and is therefore permitted;
(b)determine that the use may be consistent with the objectives of the particular zone and thereafter follow the advertising procedures of clause 9.4 in considering an application for planning approval; or
(c)determine that the use is not consistent with the objectives of the particular zone and is therefore not permitted.
As I have found that the proposed use falls within the use class 'Community Purpose' under LPS 17, it is not an innominate or unlisted use under the Scheme.

Conclusion

Almost three years ago, Shalom applied to the City for development approval under LPS 17 to change the use of the site from three 'Grouped Dwellings' to 'Community Purpose'. In particular, Shalom seeks development approval for use of the site as a rehabilitation centre for men with serious drug or other addictions or other life-dominating issues. As Shalom has maintained since it lodged the development application, the use proposed in the development application is properly classified as 'Community Purpose' under LPS 17 and is therefore a discretionary use on land in the Rural-Residential zone of the Scheme. The use is capable of development approval at the site in the exercise of planning discretion under LPS 17.
As the City has not yet considered the merits of the development application, it is appropriate that it be invited to do so under s 31(1) of the SAT Act. Under s 31(3) of the SAT Act, if the City varies its decision to refuse development approval or sets it aside and substitutes a new decision, then, unless the proceeding is withdrawn, it is taken to be for the review of the decision as varied or the substituted decision.

Orders

For these reasons, I make the following orders:
1.The preliminary issues are answered as follows:
(a)the proposed development is not properly classified as 'Residential Building' under the City of Swan Local Planning Scheme No. 17; and
(b)the proposed development is properly classified as 'Community Purpose' and is therefore capable of approval under the City of Swan Local Planning Scheme No. 17.
2.Pursuant to s 31(1) of the State Administrative Tribunal Act 2004 (WA), the respondent is invited to reconsider its decision on or before 27 July 2018.
3.The proceeding is adjourned to a directions hearing at 2.00 pm on 3 August 2018 in order to await the reconsideration.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MF
ASSOCIATE
25 MAY 2018