WEST AUSTRALIAN SHALOM GROUP INC and CITY OF SWAN
[2016] WASAT 41
•21 APRIL 2016
WEST AUSTRALIAN SHALOM GROUP INC and CITY OF SWAN [2016] WASAT 41
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2016] WASAT 41 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:299/2015 | 19 JANUARY 2016 FINAL WRITTEN SUBMISSIONS RECEIVED 24 FEBRUARY 2016 | |
| Coram: | MR P McNAB (SENIOR MEMBER) | 21/04/16 | |
| 35 | Judgment Part: | 1 of 1 | |
| Result: | Preliminary questions determined in favour of applicant, reconsideration ordered | ||
| A | |||
| PDF Version |
| Parties: | WEST AUSTRALIAN SHALOM GROUP INC CITY OF SWAN |
Catchwords: | Town planning Development application Change of use Preliminary questions 'Holistic live-in restoration program' Rural Residential zone Residential buildings prohibited in zone Whether use as a 'residential building' Whether use as a 'sanatorium' Tribunal determining that use was not a sanatorium Whether use lacked permanency of occupation required Tribunal determining that building was not used for the purpose of people dwelling there as settled or usual abode Use was not as a 'residential building' Whether use as a 'community purpose' Tribunal determining that use lacked sufficient local community element necessary for community purpose Use considered innominate and reconsideration ordered Words and phrases: 'residential building'; 'community purpose'; 'sanatorium' |
Legislation: | Development Control Regulations 1982 (SA), reg 4 Planning and Development Act 2004 (WA) Schools Authority Act 1976 (ACT) State Administrative Tribunal Act 2004 (WA), s 31(1) Tumbarumba Local Environmental Plan 1988 (NSW) |
Case References: | APN Outdoor and City of Cockburn [2014] WASAT 32 Armato v Hepburn Shire Council [2007] VCAT 603; (2007) 152 LGERA 407 Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147; (2013) 201 LGERA 116 Cavill and Mulholland [2007] WASAT 158 Derring Lane Pty Ltd v Port Phillip City Council (No 2) [1999] VSC 269; (1999) 108 LGERA 129 Derring Lane Pty Ltd v Port Phillip City Council [1998] VSC 182 Dooralong Residents Action Group Pty Ltd v Wyong Shire Council [2011] NSWLEC 251; (2011) 186 LGERA 274 GrainCorp Operations Ltd v Liverpool Plains Shire Council [2013] NSWCA 171; (2013) 194 LGERA 83 Grey Boulevarde Pty Ltd v Maroochy Shire Council [2000] QPELR 167 Herdsman Neighbourhood Centre and Town of Cambridge [2006] WASAT 314 Hope and City of Joondalup [2007] WASAT 8 Hume C55 Part 2 (PSA) [2005] PPV 75 Kaurna Aboriginal Community House Inc v City of Salisbury (1986) 20 APA 346 Kytherian Association of Queensland v Sklavos (1958) 101 CLR 56 North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd (1990) 21 NSWLR 532; (1990) 71 LGRA 432 Owners of Ceresa River Apartments Strata Plan 55597 and Haines [2015] WASAT 72 Penola and District Ratepayers' and Residents' Association Inc v Wattle Range Council [2011] SASCFC 62; (2011) 110 SASR 110; (2011) 181 LGERA 305 Su and City of Canning [2011] WASAT 34 VBI Properties Pty Ltd v Port Phillip City Council [2000] VCAT 885; (2000) 6 VPR 20 Warren v Living Water Home Healing Committee [1981] VR 551; (1981) 43 LGRA 231 |
Orders | 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.,3. The matter is to return for further directions, if necessary, in the Deputy President's list on 24 June 2016. |
Summary | The Western Australian Shalom Group Incorporated operated a residential-based 'holistic restoration program' providing services to men who were 'trapped by life-controlling issues'. The operation is known as 'Shalom House'. Residents require considerable self-discipline and commitment and are closely monitored and mentored by staff and various professionals. The applicant sought to change the approved use of the 4 hectare block that they occupied in Henley Brook from that of 'Grouped Dwellings' to that of 'Community Purpose'. The City of Swan classified the proposed development as a 'Residential Building'. Such a use was a prohibited land use in the Rural Residential zone where Shalom House was located. Three preliminary questions arose concerning whether the proposed development was properly classified as:,(a) 'Residential Building' and therefore prohibited;,(b) a 'Community Purpose' and therefore capable of approval; or ,(c) a use not listed and therefore capable of approval, under the City's town planning scheme.,After reviewing the previous cases, both local and interstate, on the question of what use constitutes a 'residential building', the Tribunal concluded that Shalom House was not a 'residential building' as the accommodation provided to the inmates lacked the permanency required and was not used for the purpose of people dwelling there permanently or for a considerable period of time, or having in that building their settled or usual abode. ,An exception to the definition was a 'sanatorium' use. The Tribunal concluded that Shalom House was not being used as a sanatorium having regard to the historical underpinnings of a sanatorium (such as treatment including medical isolation, convalescence and cure).,The Tribunal also concluded that the land use was not as a 'community purpose'. For town planning purposes, such a use focuses on use by a group of persons (undefined and flexible in terms of numbers and composition) who reside in, or are associated with a particular locality, one that is more or less geographically local to those members, and whose members broadly share, have or hold similar identity, needs, characteristics or aims. Shalom House lacked the inherent requirements of sufficient localism that was the premise of a 'community purpose' use.,As it was not suggested that the proposed use could be said to fall within the type, class or genus of activity of any other use class, the City was invited to reconsider the proposal under review, on its merits, as an unlisted or innominate use. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : WEST AUSTRALIAN SHALOM GROUP INC and CITY OF SWAN [2016] WASAT 41 MEMBER : MR P McNAB (SENIOR MEMBER) HEARD : 19 JANUARY 2016 FINAL WRITTEN SUBMISSIONS RECEIVED 24 FEBRUARY 2016 DELIVERED : 21 APRIL 2016 FILE NO/S : DR 299 of 2015 BETWEEN : WEST AUSTRALIAN SHALOM GROUP INC
- Applicant
AND
CITY OF SWAN
Respondent
Catchwords:
Town planning Development application Change of use Preliminary questions 'Holistic live-in restoration program' Rural Residential zone Residential buildings prohibited in zone - Whether use as a 'residential building' Whether use as a 'sanatorium' Tribunal determining that use was not a sanatorium Whether use lacked permanency of occupation required Tribunal determining that building was not used for the purpose of people dwelling there as settled or usual abode Use was not as a 'residential building' Whether use as a 'community purpose' Tribunal determining that use lacked sufficient local community element necessary for community purpose Use considered innominate and reconsideration ordered Words and phrases: 'residential building'; 'community purpose'; 'sanatorium'
Legislation:
Development Control Regulations 1982 (SA), reg 4
Planning and Development Act 2004 (WA)
Schools Authority Act 1976 (ACT)
State Administrative Tribunal Act 2004 (WA), s 31(1)
Tumbarumba Local Environmental Plan 1988 (NSW)
Result:
Preliminary questions determined in favour of applicant, reconsideration ordered
Summary of Tribunal's decision:
The Western Australian Shalom Group Incorporated operated a residential-based 'holistic restoration program' providing services to men who were 'trapped by life-controlling issues'. The operation is known as 'Shalom House'. Residents require considerable self-discipline and commitment and are closely monitored and mentored by staff and various professionals. The applicant sought to change the approved use of the 4 hectare block that they occupied in Henley Brook from that of 'Grouped Dwellings' to that of 'Community Purpose'. The City of Swan classified the proposed development as a 'Residential Building'. Such a use was a prohibited land use in the Rural Residential zone where Shalom House was located. Three preliminary questions arose concerning whether the proposed development was properly classified as:
- (a) 'Residential Building' and therefore prohibited;
(b) a 'Community Purpose' and therefore capable of approval; or
(c) a use not listed and therefore capable of approval, under the City's town planning scheme.
An exception to the definition was a 'sanatorium' use. The Tribunal concluded that Shalom House was not being used as a sanatorium having regard to the historical underpinnings of a sanatorium (such as treatment including medical isolation, convalescence and cure).
The Tribunal also concluded that the land use was not as a 'community purpose'. For town planning purposes, such a use focuses on use by a group of persons (undefined and flexible in terms of numbers and composition) who reside in, or are associated with a particular locality, one that is more or less geographically local to those members, and whose members broadly share, have or hold similar identity, needs, characteristics or aims. Shalom House lacked the inherent requirements of sufficient localism that was the premise of a 'community purpose' use.
As it was not suggested that the proposed use could be said to fall within the type, class or genus of activity of any other use class, the City was invited to reconsider the proposal under review, on its merits, as an unlisted or innominate use.
Category: A
Representation:
Counsel:
Applicant : Mr P Lochore
Respondent : Mr P Wittkuhn
Solicitors:
Applicant : Steenhof Brothers Barristers and Solicitors
Respondent : McLeods Barristers and Solicitors
Case(s) referred to in decision(s):
APN Outdoor and City of Cockburn [2014] WASAT 32
Armato v Hepburn Shire Council [2007] VCAT 603; (2007) 152 LGERA 407
Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147; (2013) 201 LGERA 116
Cavill and Mulholland [2007] WASAT 158
Derring Lane Pty Ltd v Port Phillip City Council (No 2) [1999] VSC 269; (1999) 108 LGERA 129
Derring Lane Pty Ltd v Port Phillip City Council [1998] VSC 182
Dooralong Residents Action Group Pty Ltd v Wyong Shire Council [2011] NSWLEC 251; (2011) 186 LGERA 274
GrainCorp Operations Ltd v Liverpool Plains Shire Council [2013] NSWCA 171; (2013) 194 LGERA 83
Grey Boulevarde Pty Ltd v Maroochy Shire Council [2000] QPELR 167
Herdsman Neighbourhood Centre and Town of Cambridge [2006] WASAT 314
Hope and City of Joondalup [2007] WASAT 8
Hume C55 Part 2 (PSA) [2005] PPV 75
Kaurna Aboriginal Community House Inc v City of Salisbury (1986) 20 APA 346
Kytherian Association of Queensland v Sklavos (1958) 101 CLR 56
North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd (1990) 21 NSWLR 532; (1990) 71 LGRA 432
Owners of Ceresa River Apartments Strata Plan 55597 and Haines [2015] WASAT 72
Penola and District Ratepayers' and Residents' Association Inc v Wattle Range Council [2011] SASCFC 62; (2011) 110 SASR 110; (2011) 181 LGERA 305
Su and City of Canning [2011] WASAT 34
VBI Properties Pty Ltd v Port Phillip City Council [2000] VCAT 885; (2000) 6 VPR 20
Warren v Living Water Home Healing Committee [1981] VR 551; (1981) 43 LGRA 231
Introduction
1 The applicant, the Western Australian Shalom Group Incorporated (applicant), operates what has been described in the proceedings as a 'holistic live-in restoration program providing services to men who are trapped by life-controlling issues'. The program, which is residential in nature, operates under the name 'Shalom House' from a large rural residential property (4 hectares) on Park Street in Henley Brook (subject land) in the City of Swan (City or respondent).
2 From what the Tribunal has been told (and has observed), there is no doubt that this operation makes an important contribution to the wider community in terms of the carefully supervised, if not regimented, rehabilitation of men afflicted by cycles of substance abuse, incarceration and family dysfunction. The program requires considerable self-discipline and commitment by participants, and these men are, in turn, closely monitored and mentored by professionals and others, including the applicant's founder, Mr Peter Lyndon-James. However, these observations are only general in nature and do not, of course, prejudice any future merits-based assessment by the respondent or the Tribunal.
3 The subject land is more formally described as Nos 1 - 3/157 (Lot 1) Park Street, Henley Brook (Lot 1 on Diagram 89637, comprised in Certificate of Title Vol 2055 Fol 269) and is located on the corner of Park Street and Murray Road. The subject property falls within City of Swan Local Planning Scheme 17 (LPS 17). Under LPS 17, the subject land is currently zoned Rural Residential.
4 The applicant originally sought to change the approved use of the subject land from that of 'Grouped Dwellings' to 'Community Purpose'. The proposed use neither required nor anticipated any additional construction on the subject land. In effect, the current application is for continuation of the current use (detailed below). On 28 July 2015, the respondent issued a refusal of planning approval in the following terms:
1. The proposed change of use is considered to be classified as a 'Residential Building' pursuant to [LPS 17].
2. A 'Residential Building' is a use that is not permitted by [LPS 17] within the 'Rural Residential' zone applicable to the subject lot.
5 On 30 October 2015, a Deputy President in this Tribunal, Parry DCJ, ordered that the following issues be tried as preliminary issues:
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].
6 For the reasons set out below, the proposed development is neither a 'Residential Building' nor a 'Community Purpose' and is a use not listed (an innominate use) and therefore capable of approval under LPS 17.
The facts
7 In the presence of counsel and the parties, the Tribunal was assisted by a daytime site visit to the subject land.
8 The parties were agreed upon the following very comprehensive set of facts relevant to the questions to be determined:
Physical structures and layout
1. 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 has: three bedrooms on the ground floor, and two bedrooms on the mezzanine level;
(B) unit 2 has two bedrooms on the ground floor, and one bedroom on the mezzanine level; and
(C) unit 3 has three bedrooms on the ground floor and two bedrooms on the mezzanine level.
(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', comprises:
(i) a kitchen currently used as an office;
(ii) a dining or activity area currently used as a storage area for food and consumables;
(iii) a bedroom currently used as a store room, but also includes a bed;
(iv) a storage area off the bedroom currently used as a clothing store made available to program participants if they require it;
(v) a toilet and bathroom also used a store room; and
(vi) a carport;
(g) the fifth of the five residential units at the west end of the building, identified as 'Unit 3a', akin to a 'granny flat', which is currently operating as a 'live in leader's quarters' includes:
(i) one bedroom;
(ii) a kitchen;
(iii) a bathroom with a toilet; and
(iv) a carport.
2. In the centre of the building between the carports is a large laundry with a separate toilet. The laundry is currently equipped with several washing machines used for washing the participants' clothing.
3. 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.
4. There are lawns and gardens within the immediate curtilage of the main building.
5. The property does not bear any signage.
6. 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.
7. 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 to a second driveway entry on Murray Street. The other boundaries are fenced with standard rural fencing.
8. There is vehicular entry to the subject land from Murray Road (Eastern) boundary via a driveway to the curtilage of the main building.
9. The subject property has nine available car bays for the on-site staff and 'Stage 3' resident-participants (see further below, under 'Operations'), and there is ample area for additional parking.
10. Rearward of the main building and its curtilage/retaining wall, the balance of the property is cleared paddocks.
11. Other buildings on the subject land are:
a) a single shed set up as a stable, currently not in use; and
b) an 8 m by 8 m tin shed, which is set back 150 m from the rear of the house.
12. The property has two large belowground water tanks at the rear, and at either end of the rectangular building.
Operations and tenure
13. 'Shalom House' accommodates up to 30 men in a live-in arrangement.
14. The proprietor of the land is Swan Valley (WA) Pty Ltd.
15. Tenancy Agreements for Units 1, 1a and 2 were signed on 18 November 2014, with Tenancy Agreements for Units 3 and 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 Peter Lyndon-James, the Chief Executive Officer of Shalom Group. Mr Lyndon-James transferred the tenancies to the West Australian Shalom Group Inc. (Shalom Group).
16. Subsequently, the subject land has become known as 'Shalom House'. Features of the Shalom House program include:
(a) men are only accepted as participants if they:
(i) have been suffering from a debilitating life-controlling 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 for admittance;
(iii) express a genuine commitment to tum 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 three stage restoration program, 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 program including accommodation;
(c) upon arrival, if an incoming resident-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 resident-participant's duration in the program;
(e) the current living arrangements for the granny flat are as described in (g) below. The following points relate to the three side-by-side residential units:
(i) each resident-participant is assigned a bedroom that is usually shared with another participant for the purpose of teaching cooperation and promoting a family environment;
(ii) there is a mix of resident-participants within each residential unit throughout the various stages of the program, from new arrivals to those close to leaving the program and re-entering mainstream society;
(iii) a roster of domestic tasks is kept for each residential unit and each participant has household obligations each day;
(iv) participants in each residential unit are expected to keep their own bedroom and, jointly, to keep all living areas clean and orderly;
(v) subject to the matters described in (z) below, the participants also cook meals for the 'household' represented by that residential unit;
(f) the Chief Executive Officer of Shalom House does not reside at the subject land, but oversight of Shalom House is his full-time occupation. Currently, Shalom House has three full time staff members and five part-time staff members as follows:
Name | Position | Status | Shalom Resident |
Damien, G | House coordinator | Full time | No |
James, H | Admin Coordinator | Full time | No |
Wayne, H | Works coordinator | Full time | Yes |
Joanne, Ms Smith | Admin assistant | Part time | No |
Nigel, H | Works officer | Part time | Yes |
Richard, Mr Smith | Discipleship coordinator | Part time | No |
(g) the fourth residential living unit, akin to a 'granny flat', is currently occupied by two Shalom Graduates who have completed 'Stage 3' of the program as is described below, and who are given responsibility for oversight of new resident-participants in Stages 1 and 2 as the final part of the program prior to leaving the program and reintegrating into society. One of the Shalom Graduates works full time completely independent of Shalom House and is currently searching for other residential options. The other Shalom Graduate studies part time at Bible College and works two days per week in the Shalom Program as a Works Officer;
(h) 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;
(i) drinking, smoking and alcohol are not permitted on the property;
(j) if a participant requires detox at the beginning of the program then:
(i) this occurs on-site;
(ii) it occurs without the aid of any medications;
(iii) there is not necessarily any attendance by 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 (k) and (l) below;
(iv) other resident-participants provide informal untrained support through the detox process; and
(v) the resident-participant undertaking detox is not placed in any special facility on-site, but recovers within the household of one of the residential units;
(k) upon entry to the program, all residents are taken to see Dr Hammond at the Craigie Medical Centre for an initial consultation, examination, blood and urine analysis. A general practitioner attends on an approximately weekly basis to provide any resident-participant with medical assistance on an 'as needs' basis, or periodically for ongoing medical treatment as determined by the doctor;
(l) within the first two weeks of entry to the program, all residents receive a consultation from a volunteer psychiatrist. Depending on the outcome of that consultation, there may be a need for ongoing psychiatric support, which is determined by the psychiatrist and the Chief Executive Officer. A psychiatrist attends on an approximately weekly basis to consult with those participants;
(m) the Pastoral Care Coordinator attends the House twice weekly, being on:
(i) Tuesdays between approximately 8 am and 9:45 pm; and
(ii) Fridays between 8 am and 4 pm;
(n) as outlined in Shalom House's Residential Contract, it is mandatory for each resident to see both a medical practitioner and a psychiatrist on entry to the Program. The resident is seen by the medical practitioner at his Medical Centre, where the program 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 at Shalom House free of charge. There has been no change in either service provider since the establishment of Shalom House;
(o) Shalom House stringently guides each participant through the program's three stages. The overall duration of the program, and the duration of each stage, is flexible and tailored to each individual participant. However, the overall program typically lasts for approximately 12 months. Further details are as follows:
(i) Stage 1: approximately three months, except as described elsewhere. 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 House. Upon arrival, if a participant requires detox, this occurs on-site at the beginning of Stage I. Additionally, there is limited access to TV and media broadcasts throughout the programme's three stages (detailed above). In addition, there is a limit on phone use throughout the duration of the program. During this stage, resident-participants are introduced and acclimate to the lifestyle that the Shalom House program demands;
(ii) Stage 2: the Chief Executive Officer of Shalom House works up a Resident Overview Plan with the individual resident-participant. This plan is devised during the final month of stage 1. During stage 2, participants are focused on improving their work skills, vocational skills and life skills. Additionally, the participants work two days a week, progressing up to three or a maximum of four days per week. They perform paid work with an employer, who:
(A) partners with Shalom House and its objectives;
(B) understands something about the background of the individual participant;
(C) is prepared to take him 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 House ensures that the revenue generated is used to fulfil the participants' Resident Overview Plans, which includes paying off any accrued debts, fines or simply helping the participants to qualify for their driver's licences or to acquire tools for future use in their chosen vocational skill;
Apart from employment, and except as elsewhere appears as an agree fact, the participants do not leave the property except with an approved person;
(iii) Stage 3: the participant performs 1 – 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 11 pm;
At any point during the three stages, a participant may have his program 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 resident-participants to their daily work places and returns them to the subject property;
(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, their own business, etc;
(q) from the income earned from employment with a Partner Employee, participants are required 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;
(r) every weeknight, the participants attend a mandatory discipleship session where volunteers read and discuss biblical teachings and pray with each other;
(s) each Friday night, the Shalom House bus delivers all the participants to a church service at Without Walls, a Pentecostal Church in North Perth to participate in a Friday night service;
(t) each Saturday morning the resident-participants meet with the house leaders to discuss the running of the house and resolve any issues that have arisen in the previous week;
(u) on Saturdays the resident-participants get to participate in planned and supervised recreational activities that may include bus trips to the beach or other venues;
(v) each Saturday, the Shalom House bus delivers all the participants to and collects them from a church service at Riverview Church, a large church in Victoria Park. Riverview Church also facilitates a time before and after the service for the participants to meet and spend time with family and friends as there are strict restrictions on family and friends visiting the property;
(w) [unnecessary to reproduce, as a duplicate of (v) above];
(x) 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;
(y) on-site visits to Shalom House resident-participants are kept to a minimum as the Shalom Group attempts to confine family visits to 'family nights', which are held every Saturday night at a local Church venue. The Chief Executive Officer determines whether any additional family visits are necessary for the purpose of relational restoration;
(z) Shalom House provides all the food, which the resident-participants cook/prepare in their residential units. A Shalom House staff member, Damien Gee, performs the shopping for the majority of household items, including food, cleaning items, and personal hygiene items. Mr Gee's job is to oversee the running and stock of the three Units. Other individual personal items are acquired by the residents themselves on an 'as-needs' basis. Residents are given the opportunity to purchase such items each Sunday when they are taken for a short supervised shopping trip;
(aa) every morning, all resident-participants assemble for breakfast in the residential unit that has the largest dining area. This includes some structured fellowship;
(bb) Shalom House also arranges for teams of participants to attend and undertake supervised gardening and other charitable work for people in need in the broader community.
9 Mr Lyndon-James gave oral and written evidence, explaining in more detail some aspects of the program and operations set out above or matters incidental thereto. In response to questions from the Tribunal on the religion-based therapy or philosophy practised at Shalom House, Mr Lyndon-James explained the position as follows:
[The Tribunal:] You have a strong underlying Christian basis for the community there, Shalom House. That's correct, isn't it? --- [Mr Lyndon James:] That's correct.
… Does that mean that non-Christians are excluded, or would they have to convert? --- No. Any people, any faith … Totally ecumenical.
Okay. So when people are bussed to the churches, etc how do non-Christians fit in with those [types] of worship arrangements? --- Because of the program, it's how do you communicate what you know to be true without pushing religion down someone's throat, that are not actually - not actually religious and they can't stand religion … And I often think, myself, if the Church of God was like Hungry Jack's, it would be chockas. At least you know what you're getting when you go to Hungry Jack's, but with churches, it's confusing. So how do you communicate what you know to be true[?] I don’t take my fellows to one church. I take them to three different types of churches … Some do it this way, some do it this way, some do it this way, and my hope is that they would find a church that they feel comfortable with, and when they leave the program they take their pick. And if they don't feel comfortable with any of them, that's fine. I don't push religion down their throat.
What [if] they want to go to a Buddhist temple or a synagogue or a mosque? --- Then they probably wouldn't be suitable for our program. I explain to every person when they come, 'I Don't care what your faith is. I don't care what your belief is. I don't care even if you're an atheist. But, if you're going to [stay] here, this is what we do on a weekly basis.' I make it really clear to the people at the intakes that I promise them I will not push religion down their throat, 'But this is what we do at the House, and if you come into this House, you're agreeing to this [and it] is what we do.'
So they're expected to attend. They must attend … even if they're not practising Christians? --- That's correct.
They must listen to the message, at least? --- Yes.
And get involved? --- Yes … And they're quite entitled to leave, if they want to leave, but as a House, we always have this motto, 'One in, all in.'
(T:13; 19.01.16)
- To the extent that this issue is relevant, it is dealt with below.
The planning framework
10 The parties have also agreed upon the following matters relevant to ascertaining the planning framework:
1. LPS 17 requires the use and development of land in the 'Rural Residential' zone to accord with the following objectives:
(a) to provide for low density residential development and associated rural residential activities in comprehensively planned estates;
(b) to 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) to encourage the rehabilitation of degraded areas through selected replanting of indigenous flora, and the creation and enhancement of habitat for indigenous fauna.
2. LPS 17 defines a 'Residential Building' use as 'the same meaning as in the Residential Design Codes'. The Residential Design Codes defines a 'Residential Building' as:
'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:
(a) temporarily by two or more persons; or
(b) 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'.
'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'.
4. A 'Community Purpose' is categorised as an 'A' use in the Rural Residential zone under LPS 17, which means that the use is not permitted unless the respondent has exercised its discretion favourably by granting planning approval after giving special notice (that is, public consultation) in accordance with LPS 17's requirements.
5. 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 (a 'use not listed' or an innominate use), then the respondent 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 [LPS 17]; or
(c) is inconsistent with the objectives of the particular zone and accordingly may refuse the application.
a) only sub-paragraph (b) of the definition of 'Residential Building' is in issue here;
b) in refusing the planning application solely on the basis that the proposed use was not permitted in the Rural Residential zone, the respondent did not undertake a merits-based assessment of the proposal; and
c) the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) do not materially affect any of the issues to be determined in this preliminary decision.
Discussion of the case
12 The first issue to be addressed is whether, assuming that the applicant's operation might be characterised as a 'residential building' within the meaning of the second limb of the definition ('human habitation … permanently by seven or more persons …'), it falls within any of the exceptions in the definition of 'residential building' (that is, '… but does not include a hospital or sanatorium, a prison, a hotel, a motel or a residential school'). Of these, only 'hospital', 'hotel', and 'motel' are defined in Sch 1 of LPS 17 (definitions).
13 It is unnecessary to set out those LPS 17 definitions or to discuss the meaning of the undefined land use terms in any detail. This is because it is tolerably clear that the applicant's operation, described above, does not fall within any of these land use concepts or definitions, except perhaps as a 'sanatorium' use.
14 However had, 'hospital' been defined in LPS 17 in the extensive and very broad reaching terms found in New South Wales, a question may have arisen whether the applicant's purpose of use was as a 'hospital': cf Dooralong Residents Action Group Pty Ltd v Wyong Shire Council [2011] NSWLEC 251; (2011) 186 LGERA 274 (Dooralong). There, a Salvation Army Bridge Program, discussed further below, involving extensive management of persons with addictions (including 'abstinence and spiritual support') survived characterisation as a 'hospital'. As is noticed below, there are also significant differences in the scale and organisation (and consequent funding) of that 'Bridge Program' compared to that of the applicant's program.
15 As to 'sanatorium', in Hume C55 Part 2 (PSA) [2005] PPV 75, published on 12 July 2005, the following submission was noted by a Victorian Panel inquiring into Hume City Council's Amendment C55 prepared 'in response to recommendations contained in a series of heritage studies dated from 1998 to 2003' (emphasis added):
Some of the main features and aspects of significance of the site [affected by Amendment C55] include that Greenvale [Sanatorium] was established in 1905 as a sanatorium for consumptives and was the first purpose-built public tuberculosis institution in Victoria. Further, the sanatorium is expressive of an era in which the highly contagious and deadly disease of tuberculosis, known colloquially as the 'white death', was prevalent and greatly feared in Australia, particularly among the young adults whom it most affected.
Greenvale is expressive of the 'Sanatorium movement': its foundation of isolation and fresh air was used to treat the disease prior to medical advances.
The medical philosophy - of 'open air', the 'rest cure', and sunshine - is expressed in the design of the buildings. The small timber pavilion and the 1950 boomerang shaped ward building, with its semi-open verandahs, solaria, and large open air day rooms, demonstrates the specific needs of the treatment.
This medical philosophy is also expressed through the setting and location of the place: in line with the contemporary belief in fresh air and natural remedies. Also, in line with other institutions for people with highly contagious diseases, such as Quarantine Stations for international travellers, and 'Lazarets' for leprosy sufferers, it was situated in an isolated position. Its substantial rural site is thus integral to its significance.
16 In Kytherian Association of Queensland v Sklavos (1958) 101 CLR 56, a case cited by Mr Wittkuhn for the respondent, the High Court (McTiernan, Fullagar and Taylor JJ) said this of a 'sanatorium', the expression there appearing in a testamentary disposition where the deceased had left the residue of his estate for the erection of a hospital on a Greek island, at 66 and 68 (emphasis added):
… It was pressed upon us that that term may describe an institution conducted for the purpose of profit equally with an institution conducted on charitable lines for the reception of persons in need of various forms of medical attention and treatment. But when the terms of the disposition in question are considered it is seen that the word 'sanatorium' is used in juxtaposition to the word hospital and the notion is inescapable that what the testator was seeking to describe was an institution for the reception and care of persons in need of medical attention. To speak in the circumstances of this case, as the testator did, of the erection of a sanatorium and/or hospital is not to refer to sanatoria of the type which, so counsel informed us, exist in various parts of Europe and are conducted as private institutions for the reception of wealthy guests and for the purpose of private gain. So much is obvious from the fact that the testator, himself a native of Cerigo [Kythera], was desirous of making provision for some form of medical treatment for his compatriots in a locality where no facilities existed at the date of his will. It may be that the testator thought that it might not be possible to establish an institution on the island with the full facilities of a hospital and considered that a sanatorium, with some limited facilities for the reception and treatment of patients, might be the next best way of serving his purpose. But in any event, it is clear that his reference to 'sanatorium' was intended to describe an institution not unlike a hospital and one which would provide some form of medical treatment for persons in need of it …
[T]he word 'sanatorium', in the context in which it is used, must be taken to refer to an institution which, though not providing all of the facilities generally available at a hospital, provides at least some form of medical relief to persons in need of treatment. Moreover, that is the sense in which that expression has come to be understood in this country.
17 Thus, perhaps, this definition of 'hospital' appearing in the Interim Development Model Provisions 1980 (NSW) (emphasis added):
'hospital' means a building or place used as a:
(a) hospital;
(b) sanatorium;
(c) health centre;
(d) nursing home; or
(e) home for aged persons, infirm persons, incurable persons or convalescent persons, whether public or private, and includes a shop or dispensary used in conjunction therewith, but does not include an institution[.]
- A similar definition appears in Queensland planning instruments: see, for example, Grey Boulevarde Pty Ltd v Maroochy Shire Council [2000] QPELR 167, at [13].
18 In Webster's Third International Dictionary (1961) 'sanatorium' is defined as:
1: an establishment that provides therapy by physical agents (as hydrotherapy, light therapy) combined with diet, exercise, and other measures for treatment or rehabilitation
2a: an institution for rest and recuperation [especially] for invalids and convalescents
2b: an establishment for the treatment of the sick [especially] if suffering from chronic disease (as alcoholism, tuberculosis, nervous or mental disease) requiring protracted care.
19 The ordinary meaning of the word 'sanatorium' in Australia confirms, generally speaking, the medical nature of the activities ('treatment' and sometimes medical isolation) undertaken at such places. Accordingly, the Macquarie Dictionary defines 'sanatorium' as (emphasis added):
1. an establishment for the treatment of invalids, convalescents, etc., especially in a favourable climate: a tuberculosis sanatorium.
2. a health resort.
3. that part of a boarding school set apart for the treatment or isolation of sick pupils.
20 It would seem that attendees at the applicant's operation are not receiving relevant 'treatment' analogous to that provided by a hospital or a clinic, having regard to the historical underpinnings of a 'sanatorium' (such as treatment including medical isolation, convalescence and cure). I accept Mr Wittkuhn's submission to the effect that any treatment to any resident at the subject land, if that is what it is, is incidental to the general activities carried out on site.
21 A characterisation of use as a 'sanatorium' is thus, in this case, not sufficiently made out.
22 The applicant's operation not falling within any of the exceptions, it is necessary to turn to the central issue of whether the applicant's operation is a 'residential building' land use and is thus prohibited in this zone.
Residential building
23 In VBI Properties Pty Ltd v Port Phillip City Council [2000] VCAT 885; (2000) 6 VPR 20 (VBI Properties), the Victorian Civil and Administrative Tribunal (VCAT) traced, in a lengthy decision, the historical development of definitions such as that which appears for 'residential building' in LPS 17. The Tribunal commenced by noting the position under the Melbourne Metropolitan Planning Scheme Ordinance 1954 (Vic). There, see at [38] of VBI Properties, a 'residential building' was defined to mean:
… a building used for human habitation, not providing self contained living accommodation for individual families, but does not include an educational establishment, a hospital, an institutional home, a mental institution, a reformative institution or a tourist establishment.
- Such formulations have been used, at least in that State, for over 60 years: see the historical planning definitions reproduced at [38] - [75] of VBI Properties. The 1954 definition in the Ordinance, and its successors, set out above bears more than a passing resemblance to the definition we are concerned with in this case. And, the same basic form of the definition encapsulating a building for human habitation (with outbuildings) with express inclusions and exclusions appears to be relatively common in New South Wales: see, for example, North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd (1990) 21 NSWLR 532; (1990) 71 LGRA 432.
24 I should note that VBI Properties was judicially reviewed by Balmford J in VBI Properties Pty Ltd v Victorian Civil and Administrative Tribunal [2001] VSC 22; (2001) 112 LGERA 334. Her Honour found no material error in the decision under review and the order to review was discharged. The Court of Appeal refused leave to appeal: [2003] VSCA 17.
25 Importantly, VBI Properties sought to apply Balmford J's decision in Derring Lane Pty Ltd v Port Phillip City Council (No 2) [1999] VSC 269; (1999) 108 LGERA 129 (Derring Lane). (Curiously, the same case is also reported - but with a different headnote - at (1999) 104 LGERA 92; see also Derring Lane Pty Ltd v Port Phillip City Council [1998] VSC 182 where Balmford J gave leave to appeal.)
26 In Derring Lane, her Honour said (at [16]):
… the phrase 'residential building' [in a planning context] must be taken to refer to a building constructed for the purpose of people dwelling there permanently or for a considerable period of time, or having in that building their settled or usual abode.
27 Derring Lane was a case where the court had to decide whether a building which operated as a motel, the purpose for which it was built, could properly be described as a 'residential building' in respect of a monetary contribution upon subdivision. Balmford J held that the motel building was not a 'residential building'.
28 Her Honour's views have, unsurprisingly, found themselves the subject of an entry under 'Residential building' in Australian Legal Words and Phrases (LexisNexis). Derring Lane has also been considered or applied in similar contexts in this Tribunal: see, for example, Hope and City of Joondalup [2007] WASAT 8; Cavill and Mulholland [2007] WASAT 158 and, most recently, in Owners of Ceresa River Apartments Strata Plan 55597 and Haines [2015] WASAT 72.
29 VBI Properties was a case concerning the extent, if any, to which existing use rights were applicable to land in St Kilda which had approval for a 'boarding house' in circumstances where that use had been displaced by a 'backpackers hostel'. In the Tribunal's survey of previous planning decisions in relation to the same St Kilda site, the following comment, from 1989, made by one of VCAT's predecessor Tribunals was noted (at [158] (emphasis added):
We consider that an important part of the distinction between a residential building and a tourist establishment is the relationship of the inmates to it. A residential building is the home or abode, even if only temporarily, of a person living there. On the other hand a traveller, tourist or person engaged in recreational pursuits might stay temporarily at a tourist establishment but his or her home would be elsewhere[.]
- This analysis was said by VCAT in VBI Properties at [157] to be 'similar to Justice Balmford's analysis in [Derring Lane]'. I agree.
30 It thus becomes immediately apparent that if Derring Lane is to be applied, the express words of exclusion in the definition in sub-paragraph (b) of the definition of 'Residential Building' imported from the Residential Design Codes, in this case ('… but does not include a hospital or sanatorium, a prison, a hotel, a motel or a residential school'), exclude categories of land use that ordinarily incorporate accommodation for persons whose 'home' would, in any case, be clearly 'elsewhere'. So, like a tourist, a resident in a hospital or a sanatorium would ordinarily be discharged to or would return to their 'home'. Even a prisoner would be ordinarily released and expected to return 'home' or to be 'permanently' housed somewhere other than a prison.
31 This issue was identified by VCAT in Armato v Hepburn Shire Council [2007] VCAT 603; (2007) 152 LGERA 407 (Armato) where Deputy President Gibsonwas dealing with a large single storey 'rambling weatherboard house' with more than 10 habitable rooms. The Tribunal there said, at [20] (emphasis added):
The case of Derring Lane regarding the distinction between residential building and motel illustrates the difficulties associated with characterising land uses where definitions are extremely broad and where there is a lack of rigour and consistency displayed in the way which terms such as 'reside', 'residential' and 'residence' are used in specific definitions nested within broad terms. Certainly in terms of the land use terms nested within 'residential building', distinctions between permanent or long stay accommodation and short stay accommodation are not maintained and there are contradictions in the way in which the defining concept of 'residential' is applied.
- The footnote attached to this paragraph (fn 6) reads:
The definition of group accommodation is a classic example of this inconsistency. Group accommodation is defined as: 'Land, in one ownership, containing a large number of dwellings used to accommodate persons away from their normal place of residence.' It is a contradiction in terms to describe such accommodation as 'dwellings' having regard to the definition of dwelling as a residence, which has been consistently interpreted by courts and tribunals to mean a place where people live or reside permanently or for a considerable time, and to then say that the accommodation is for persons away from their normal place of residence. The definition would make more sense if the word 'dwellings' was replaced by the word 'buildings' or even 'houses'.
So far as the present case is concerned, if I leave aside the anomalies that backpackers lodge and motel represent within the nested term 'residential building' [this term included those and other similar uses], a house used for short term rental accommodation does not have a residential character if 'residential' is given the meaning ascribed to it in Derring Lane and other cases of relating to a place where people have their settled or usual abode. Nor does such a house share the other common characteristic of uses nested within the term 'residential building' of being a building that offers multiple units of accommodation to multiple individuals or groups who are not necessarily related or connected to one another. I therefore conclude that Holly Lodge [the subject property] is not a residential building.
33 In GrainCorp Operations Ltd v Liverpool Plains Shire Council [2013] NSWCA 171; (2013) 194 LGERA 83 (GrainCorp) the New South Wales Court of Appeal considered whether a major development for 'fly in, fly out' temporary accommodation for migratory workers fell within a prohibition against use for '[r]esidential buildings (other than dwelling-houses and units for aged persons)'. The court held that it did, emphasising, at [115], that 'if the workforce is relatively stable workers will come and go on a regular basis and will therefore, in aggregate, spend a not inconsiderable time at the facility' (emphasis added).
34 The circumstances of this case are considerably different from GrainCorp. Nevertheless, there is much to be found in that case that is of assistance to the Tribunal here. In GrainCorp, Ward JA (Beazley P and Sackville AJA concurring) said, at [121] and [122] (emphasis added):
[Counsel], in the course of argument on the appeal, appeared to accept that his argument was no more complicated than that it is intended that workers will stay in the facility during a shift and will then be required to move out when their shift finishes, although he later added to that the proposition that the worker will not necessarily use the same room each time he or she returns to the facility. In essence it is the latter which [counsel] submits identifies the temporary nature of the accommodation and the transient nature of the population that will use the facility.
I do not accept that those features detract from the residential character of the facility: namely, that it will provide accommodation and living facilities for mine workers for considerable periods of time, in aggregate, over their working life at the mine (however long or short that may be). The fact that workers will stay elsewhere (unless they are otherwise homeless or peripatetic) during the periods when they are not at the workforce accommodation facility does not mean that during the period they are in occupation at the facility it is not performing a residential function.
35 Ward JA said this, at [118], after considering Derring Lane:
[If] a worker is employed either indefinitely or on a contract for a settled period, then it is difficult to accept that there is not a sufficient notion of permanence or settled accommodation if that worker occupies the workforce accommodation facility each time he or she is rostered on duty at the mine.
36 Earlier, at [101], after reviewing the authorities in this area relied upon by the trial Judge, Ward JA had said:
… on the ordinary meaning of 'residential' it is sufficient that structures are used as the usual abode of people or as their abode 'for a time' (in the sense of more than a fleeting stay) or even, in some of the older usages of the expression 'in residence', for the purpose of abode for a stated function.
37 Ward JA spent some little time on 'reconciling' the relevant definitions associated with the term 'residential building': see [13] - [18]; [56] - [57]; and [61] - [63]) before concluding, at [64] (emphasis added):
If [the trial Judge] was suggesting that there was an inconsistency or illogicality in giving 'residential buildings' its ordinary meaning, [then] I do not agree. Item 5 [of the Local Plan] contains a general prohibition on use for the purpose of residential buildings, subject to two express exceptions. Item 4 carves out some additional exceptions or qualifications to the prohibition, by permitting (with development consent) some uses that otherwise would or might be regarded as 'residential buildings' but there is no occasion to read down the ordinary meaning of 'residential building' by reference to uses permitted by Item 4.
38 Here, Mr Wittkuhn submitted that:
The expression of [the] exclusions ['… but does not include a hospital or sanatorium, a prison, a hotel, a motel or a residential school'] strongly indicates that, but for those exclusions, the excluded items would fall within the natural and ordinary meaning of that definition [of 'residential building'].
39 With respect, I would take the same general approach as Ward JA did in GrainCorp, and 'not read down the ordinary meaning' of 'residential building' by reference, here, to uses excluded from the term. This approach seems additionally justified when, as we know, 'there are [sometimes] contradictions in the way in which the defining concept of "residential" is applied': Armato, at [20].
40 Ward JA found, at [74], 'little support one way or the other in the zone objectives as to the meaning of "residential buildings" in the context of this development'. The same comment may be made here in the context of the very brief and general objectives for the Rural Residential zone found in LPS 17 (see above).
41 At [104] - [111], Ward JA turned to 'the proper characterisation to be put to the purpose of the facility as a whole, having regard to what is accepted to be its intended use'. Earlier, his Honour had noted that 'that in planning law, use must be for a purpose': [48]. His Honour said that the label 'guest' applied to residents did not determine the proper characterisation of the use; likewise, the fact that workers were required to 'check-in' at reception. Also, irrelevant to, or unhelpful with, the task of the characterisation of the use were the following: the licence (the 'legal basis') that the workers ultimately occupied their rooms under; the physical characteristics of their pods; whether, subjectively, occupants would call their accommodation 'home'; and any 'impressionistic' test (that is, 'whether, looking at the complex from the outside, one would consider it to be a residential building by the nature of its use').
42 Consistent, I think, with Ward JA's general observations in GrainCorp, Mr Wittkuhn also drew attention to the need for 'objective' characterisation and the citation by me, at [23] in APN Outdoor and City of Cockburn [2014] WASAT 32, of the following passage by Preston CJ in Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147; (2013) 201 LGERA 116, at [32] and [33] (emphasis added):
[T]he question of characterisation is to be answered by reference to the particular terms of the environmental planning instrument and the land use table for the zone in which the development is to be carried out. The inquiry is whether the development can be characterised as being for a purpose that the instrument identifies as being permissible with consent and not for a purpose that the instrument identifies as being permissible without consent or as being prohibited. The focus of this inquiry is whether the development is within a nominate or innominate purpose, the terms of which are specified in the instrument. It is not to determine, at large, the category of purpose into which the development should be seen as falling and to formulate a description of that category ...
In this case, therefore, the relevant inquiry was whether Pet Carriers' proposed development was within a purpose of development that may be carried out with development consent and not one that is prohibited. Relevantly, this required determining whether the proposed development was to be characterised as being for the nominate permissible purpose of 'commercial premises' and not for any innominate prohibited purpose, such as 'airport-related land use' or 'air freight forwarder'.
43 One should, however, add this comment from Dooralong, where Pain J noted, at [106], that:
The stated intention of the Salvation Army to run a hospital is not conclusive of the characterisation of the use as a hospital but the intention to conduct activities directed to a certain outcome, here the treatment of people with addictions, is relevant to consider in relation to the purpose of the characterisation of the use under the [planning instrument].
Characterisation of use
44 In Warren v Living Water Home Healing Committee [1981] VR 551; (1981) 43 LGRA 231, Starke J refused to set aside a planning tribunal's approval as a 'guest house' of a 'Healing Home' in rural Victoria. The sole question there was whether this proposed use was a permitted use; no question of residential building arose. The Judge summarised the respondent's proposed operation as follows (VR, at 553 and 554, emphasis added):
Living Word Ministries Pty Ltd comprises some 32 families under the general direction, as I understand it, of the Reverend Foulkes. Mr Nugent [the applicant] is one of his pastors. They pool their incomes and in various ways work for the community at large. They work within the structure of the Morwell Parish of the Uniting Church, but are not under its control. The company is engaged in a large number of activities in and around Morwell. It is now proposed to build and set up a Healing Home on farm land near Morwell. The proposed Healing Home would be a single storey building designed to accommodate twelve visitants, a married couple, with or without family, a nursing sister and doctors on call. It would cater for periods of one to two weeks, amongst others, for pre- and post-operation patients, terminally-ill people, anxiety sufferers, people who have suffered marriage breakdowns and bereaved people. Its object would be to provide sanctuary and peace. The weekly fee would be $40 [approximately $150 in today's currency value], but those who could not afford this fee would still be accepted. The suggested site is near the Princes' Highway and not far from Morwell.
45 One may properly speculate that had there been in place a prohibition on development as a 'residential building', this operation, seen as a 'guest house', would not have fallen foul of that barrier, given the lack of use 'for the purpose of people dwelling there permanently or for a considerable period of time, or having in that building their settled or usual abode'. Likewise, in Dooralong, Pain J could conclude, at [110]:
Accepting that residential accommodation can be broadly defined and [following other NSW authority] as requiring a certain degree of permanency, I do not consider inpatient accommodation of up to six to ten months duration suggests sufficient permanency to satisfy the requirement of residential accommodation.
46 The extensive 'Bridge Program' in Dooralong has already been mentioned. It was described in evidence there as follows, at [14]:
The Salvation Army intend to establish within the Dooralong Centre a 'Recovery Centre - Rehabilitation Hospital for People with Addictions', where they will offer their internationally recognised 'Bridge Program' to people who wish to overcome an addiction. This program typically operates for up to a ten month period, during which time the participants live on site, and undertake professional counselling, while also carrying out work/vocational training. The Bridge Program is a completely drug free, abstinence based approach to rehabilitation, using the '12 step' recovery model. As such, the site will be operated on a drug and alcohol free basis. All people taking part in the program do so on a voluntary basis.
…
The facility will offer rehabilitation services for up to 140 people who will be living on the site. Also on site will be case workers and other professional staff, with these and other staff working 24 hours a day in three [by] eight hour shifts. In some circumstances, a maximum of ten family groups will also be living on the site, where it is deemed appropriate in the particular case. This may include both parents needing rehabilitation, or where it is deemed appropriate to keep the family unit together. This figure will be in addition to the 140 previously referred to.
47 The operation conducted on the subject land here is, of course, considerably more extensive than the Morwell Healing Home but it is not nearly as extensive as in Dooralong. Yet, at its core, and like the situation in Dooralong, there are some basic similarities, at least as regards the general motivation of their respective founders, although we must always recall the discussion of 'intention' above, and that '[a]s a general principle town planning law is concerned with the use of the land and not the identity of the user': Dooralong at [72].
48 In Dooralong, Pain J noted, at [22], that '[a] significant component of the program is religious activities'. However, as her Honour pointed out, at [65] (emphasis added):
There was no evidence to suggest that the religious/spiritual aspects of the program do not have a proper medical or preventative purpose. In cross-examination [the Salvation Army's witness] stated the spiritual model is one option for treatment. The relevant question is not whether there is a religious/spiritual underpinning but whether for town planning purposes the services might be regarded as preventative care, medical care or treatment or counselling.
- The same general position emerges from the evidence here. The subject land will accommodate up to approximately 30 men. They could reside at the property for up to 12 months, commensurate with the applicant's program of support, counselling and rehabilitation. The applicant's counsel, Mr Lochore, submitted that the 'use of the property in this case is for [the] provision of a holistic live-in restoration program providing services to men who are trapped by life-controlling issues'. Mr Wittkuhn preferred to focus on the 'objective defining characteristic[s] of the use from a town planning point of view' that indicated 'residential use'.
49 However, in my view, if Derring Lane counts as good law in this State, as seems to be the case, then on a proper construction of the prohibition, the applicant's use, however precisely characterised, is not for the purpose of a 'residential building'. In short, the accommodation provided lacks the permanency required; it is not 'for the purpose of people dwelling there permanently or for a considerable period of time, or having in that building their settled or usual abode': Derring Lane at [16].
50 Consequently, I would decline to follow two previous decisions of the Tribunal (Su and City of Canning [2011] WASAT 34, dealing with student accommodation, and St Vincent de Paul Society and City of Albany, DR 153 of 2014, transcript of reasons, 4 May 2015, dealing with accommodation for five unrelated homeless women, both cases cited by Mr Wittkuhn in support of his case), insofar as they are inconsistent with the conclusions reached above.
Community purpose
51 Mr Wittkuhn also submitted that the applicant's operation could not be classified as 'Community Purpose'. That term is defined in LPS 17 to mean the following:… 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[.]
52 Mr Lochore contended that the applicant's operations involved social and educational services and activities for community benefit (and charitable purposes). He submitted that the applicant's operation could be considered as a 'community purpose'.
53 Surprisingly, there appears to be little direct authority on the point of what constitutes a 'community purpose' in town planning law. The Tribunal's own researches revealed this perhaps related (but certainly useful) discussion in Penola and District Ratepayers' and Residents' Association Inc v Wattle Range Council [2011] SASCFC 62; (2011) 110 SASR 110; (2011) 181 LGERA 305 where White J (Nyland and David JJ agreeing) said, at [57] and [58] (emphasis added):
The expression 'community purpose' was discussed in Attorney-General (NT) v Hand [(1991) 172 CLR 185] in the context of Aboriginal land rights legislation. The High Court held that the word 'community' suggests persons who are gathered in a particular locality and involved a level of cohesiveness in the persons said to constitute the group [(1991) 172 CLR 185 at 191].
In my opinion, the juxtaposition of 'public use' and 'community purpose' in the Trust [a Declaration of Trust by the Council by which the Council declared that it held certain commonage 'for the public use of the residents of the former District Council of Penola … for sporting, agricultural, educational, recreational, community or like purposes'] is important. That juxtaposition, and the notion that a community comprises persons gathered in a particular place and linked in some way suggests that the expression 'community purposes' in the Trust should be understood as referring to the communal activities or purposes of a cohesive group of residents in the area of the former District Council of Penola. It is not easy to identify the outer limits of the meaning of the expression when understood in this way but, as I say, it does at the least refer to activities and purposes of a general communal, but not commercial, kind.
54 Another South Australian case, this one from the then South Australian Planning Appeal Tribunal (Kaurna Aboriginal Community House Inc v City of Salisbury (1986) 20 APA 346) considered the issue of a 'community centre', noting, at 350, the statutory definition, which concentrated on 'local community'. Regulation 4 of the then in force Development Control Regulations 1982 (SA) defined the term to mean (emphasis added):
… a clubroom, assembly hall, games room, reading room, canteen and any other building designed, or adapted, primarily to provide facilities for community organisations serving the local community.
55 The now repealed Schools Authority Act 1976 (ACT) defined 'community purpose' (in the context of a power 'to enter into arrangements with a community group for the use by that group for a community purpose of land or buildings') to mean:
… a purpose of a public, welfare, social, recreational or similar character that is calculated to benefit the members, or advance the common purpose or purposes, of a community group.
- Likewise, for example, the Tumbarumba Local Environmental Plan 1988 (NSW) which provides as follows:
Community use of school facilities or sites
29(1) Where land to which this plan applies is used for the purposes of an educational establishment, the site and facilities of the establishment may, with the consent of the council, be used for the purposes of meeting rooms, public halls, public libraries, entertainment, sport or recreation or for any other community purpose, whether or not any such use is a commercial use of the land[.]
Ultimately the construction of [a] definition is for town planning purposes [and with the appropriate caution] courts may use dictionary definitions to aid in the construction of statutes.
- Hence consideration of this entry for 'community' appearing in the Oxford English Dictionary (emphasis added):
2b. A body of people who live in the same place, usually sharing a common cultural or ethnic identity. Hence: a place where a particular body of people lives.
And, from the same source, where 'community hospital' is defined as 'a hospital serving a local community'.
57 The Macquarie Dictionary provides the following definitions, which again appear to focus mainly on localism:
1. all the people of a specific locality or country: the new transport service is for the benefit of the whole community.
2. a particular locality, considered together with its inhabitants: a small rural community.
3. a group of people within a society with a shared ethnic or cultural background, especially within a larger society: the Aboriginal community; Melbourne's Greek community.
4. a group of people with a shared profession, etc.: the scientific community[.]
58 Mr Wittkuhn, amongst other contentions, cited in support of his argument the Tribunal's decision in Herdsman Neighbourhood Centre and Town of Cambridge [2006] WASAT 314 as indicative of what a 'community purpose' might reasonably be thought to look like. There, Senior Sessional Member Graham affirmed a decision of the local government not to make permanent an approval for 'a proposed change of use of the existing premises to a neighbourhood centre' in respect of the 'Herdsman Neighbourhood Centre'. It was common ground, and accepted by the Tribunal there, that the centre's purpose of use was properly classified as a 'community purpose' (with the same land use definition as applicable here).
59 The centre operated under a service agreement with the Department for Community Development to provide a number of community services such as skills training; a 'men's group'; parenting courses (including a child health nurse and playgroup); placement positions for TAFE/University work experience and for Centrelink; as well as various associated services and resources (including counselling, emergency relief, advocacy and referral services). The Tribunal accepted this description of the Centre's operation (emphasis added), at [34]:
The Centre provides a number of services. One of these services is adult based training such as computer internet training and adult personal development or life skill courses designed for people in the local community. A playgroup is also held at the Centre for local community members, which is held for 2 hours once a week. Cooking and craft courses are also offered. An adult craft group is held once a week. The skills based courses that the Centre offers is beneficial for assisting to minimise the effects of social isolation that some of the members who attend these courses feel. Participants are able to share skills and make new friends in a friendly and relaxed environment.
60 In my view, a 'community purpose' for town planning purposes is a purpose that focuses on use by a group of persons (undefined and flexible in terms of numbers and composition) who reside in or are associated with a particular locality, one that is more or less geographically local to those members, and whose members broadly share, have or hold similar identity, needs, characteristics or aims. Such a group is not a matter of precise scientific calculation, organisation or classification but is to be generalised as a 'social fact'.
61 So understood, the applicant's operation here does not meet the inherent requirements of sufficient localism that is the premise of a 'community purpose' under LPS 17. This is so, even if the applicant is otherwise engaged in the provision of educational, social or recreational facilities or services and is an organisation 'involved in activities for community benefit'.
Conclusions and orders
62 For the reasons given above, the Tribunal has concluded that the applicant's proposed use is neither as a 'residential building' nor as a 'community purpose'. It has not been suggested that the proposed use can be said to fall within the 'type, class or genus of activity of any other use class'. Accordingly, the respondent will be invited to reconsider the proposal under review, on its merits, as an innominate use under LPS 17. The Tribunal's orders are therefore:
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.
3. The matter is to return for further directions, if necessary, in the Deputy President's list on 24 June 2016.
I certify that this and the preceding [62] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, SENIOR MEMBER
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