JUDGE1
DEBELLE J The question in this appeal is whether a proposed
development of
land is a welfare institution as defined by Reg. 4 of the Development Control
Regulations, 1982 ("the Regulations").
2. By an application made on 31 January 1992, the South Australian Housing
Trust ("the Housing Trust") applied to the South Australian
Planning
Commission ("the Planning Commission") for planning authorisation to develop
land which it owned in Elizabeth South. Applications
by the Housing Trust to
develop land must be determined by the Planning Commission: see Reg. 47 and
the Seventh Schedule of the Regulations.
3. The application described the proposed development as "two multiple
dwellings and a detached dwelling". The proposed use was
described as
residential. The plans of the proposal disclose that it is intended to
construct three single storey buildings on the
subject land. Two of the
buildings will be of the scale and proportion of a large dwelling and will
comprise five bedrooms (each
with en suite facilities) a kitchen, dining room,
living room and laundry. The third building will be a small two bedroom
dwelling.
At the rear of the allotment, it is proposed to provide car parking
for eleven vehicles.
4. The Housing Trust intends to lease
the development to the Adelaide City
Mission ("the ACM") which in turn intends to use the two larger buildings for
accommodating
young people who are homeless unable to live at home. The ACM
intends to use the third building as a cottage for a caretaker or
manager of
the development.
5. The subject land is within a Residential 2C zone. The Objectives and
Principles of Development Control
for this zone state that development in the
zone should consist primarily of detached dwellings and, in suitable areas,
semi-detached
dwellings, row dwellings or residential flat buildings of a
medium density and no more than three storeys high. The Development
Plan also
lists the kinds of development which are prohibited in the zone. The
prohibited uses include a welfare institution.
6.
By reason of the combined effect of Regs. 13 and 50 of the Regulations
the Planning Commission was required to determine the nature
of the proposed
development and, having done so, to deal with the application on the basis of
that determination. The Planning Commission
dealt with the application on the
footing that it was a multiple dwelling. It was, therefore, a use which was
neither permitted
nor prohibited by the Development Plan and, as such,
required the approval of the Planning Commission. It was also a development
to which s.53 of the Planning Act, 1982 applied. The Planning Commission gave
notice pursuant to s.53 and received a substantial
number of objections
opposing the development. On 3 August 1982 the Commission gave notice to the
Housing Trust that it had approved
the development. From that decision, the
City of Elizabeth and two of the residents who had objected to the proposal
appealed to
the Planning Appeal Tribunal. The City of Elizabeth withdrew its
appeal shortly before the hearing.
7. The Tribunal decided that,
subject to certain conditions, the proposal
merited planning approval. However, it decided also that the proposal should
be classified,
not as a multiple dwelling, but as a welfare institution as
defined by the Regulations. Because a welfare institution is a prohibited
development
in the Residential 2C zone, the Planning Commission should have
complied with the procedural requirements of s.47(6) of the Planning
Act,
1982. Since the required procedure had not been observed, the Commission had
no authority to approve the development application.
On 21 December 1992, the
Tribunal adjourned the hearing of the appeal to enable the Planning Commission
to seek the belated concurrence
to the proposal of both the Minister and the
Corporation of the City of Elizabeth pursuant to s.47(6). If both concurred
in the
proposal, the Tribunal would then have exercised its powers under s.35
of the Act and approved the development. The Council refused
to concur in the
proposal. The Tribunal was, therefore, required to quash the approval granted
by the Planning Commission: Craig
v Corporation of City of Burnside
(unreported decision of Jacobs J delivered 17 September 1986, Judgment No
9827). On 8 February
1993, the Tribunal published its decision quashing the
approval granted by the Planning Commission.
8. The ACM and the Housing Trust
have both appealed from the decision of the
Tribunal. The only issue on this appeal was whether the proposed development
was a welfare
institution. No argument was advanced on the question whether
the Tribunal had erred in holding that the proposal otherwise merited
planning
approval. It is, however, necessary to consider that question. As this Court
has frequently observed, it will be slow
to overrule a decision of the
Tribunal based on the planning merits of a proposal and will do so only in
exceptional circumstances
where the Tribunal has plainly made an identifiable
and egregious blunder, or has misdirected itself in law, or the circumstances
are, in some other respects, quite exceptional: Transfield (Adelaide) Pty Ltd
v City of Port Augusta (1982) 29 SASR 467, 480; Town of Walkerville v Adelaide
Clinic Holdings Pty ltd (1985) 38 SASR 161 and Penley v DC of Murray Bridge
(1992) 163 LSJS 128. The question whether the proposed development merited
planning approval involved purely planning considerations. There are a number
of features which justified the Tribunal's conclusion. In my view, this court
should not, therefore, interfere with that part of
the Tribunal's decision
which held that, apart from the question whether it is a welfare institution,
the proposed development merited
planning approval.
9. The question then is whether the proposed development should be
characterised as a welfare institution. Before
dealing with that question, it
is convenient to note in greater detail what the ACM intends to do at the
proposed premises. The
Tribunal found that the ACM is a well-known charitable
organisation in South Australia. It is a branch of Mission Australia. The
evidence was that its activities include assisting families in crisis,
providing training for employment for persons who have been
long unemployed,
and providing drug and alcohol rehabilitation programmes for young people. On
any view, whether or not it is a
charitable organisation within the strict
legal sense, it is certainly a benevolent institution.
10. As already mentioned, the ACM
proposes to accommodate ten young people
without homes in the new facility. The desire is to house them on a medium to
long term
basis of six to eighteen months. Short term crisis accommodation
will not be provided. The age of the occupants will range from
fifteen to
twenty-one years. The funds to construct the facility are to be provided by
the Federal Government. The ACM will furnish
the building at its own cost.
In addition to that cost, the ACM anticipates that it will incur an annual
operating loss of $16,000
to $17,000. The residents will each be requested to
pay approximately $70 per week for the accommodation. The ACM believes that
to be a reasonable fee for the accommodation and other facilities provided.
It believes that it approximates current market value
for this type of
accommodation. In addition to providing the accommodation, the ACM will seek
to provide a home environment as close
as is reasonably practicable to a
normal home for the young people living in the two five-bedroom residences.
On each evening on
weekdays, a cooked meal will be provided. To a limited
extent, the caretaker/manager or that person's spouse will seek to fulfil
some
of the functions of a parent by seeking to guide, counsel and advise the young
people, teach them some living skills, and impose
such discipline and control
as is necessary to maintain harmony and keep order among those living in the
premises. Formal counselling
will not be provided. The ACM believes that in
providing this accommodation it is answering what it calls a desperate need in
this
community.
11. The inquiry for the purpose of determining the nature of the proposed
development pursuant to Reg. 13 may involve
an examination of the nature of
any building which it is proposed to construct on the land and the intended
use of that building
on the land. It might often be a question of fact and
degree whether the proposed development in fact constitutes one kind of
development
as opposed to another: Lizzio v Ryde M.C. (1983) 155 CLR 211,
217; Penrith CC v Waste Management Authority (1990) 71 LGRA 376, 384. As
Stephen J observed in Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council
(1980) 145 CLR 485 at 507 to 508, this inquiry should not involve a meticulous
examination of the details of the likely activities to be conducted on
the
land or any precise cataloguing of them but, instead, should be an inquiry as
to what according to ordinary terminology is the
appropriate designation of
the use to be made of the land or buildings. A useful criterion to apply is
that which would appeal to
practical minds as appropriate in the context of
town planning legislation: see also Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR
529, 535.
12. For the purpose of determining whether a development or any class of
development is permitted, either absolutely or conditionally,
or is prohibited
by the Principles of Development Control embodied in the Development Plan,
Reg. 4 of the Regulations defines a number
of words and expressions. These
include many types of land use. The application for planning consent
described the development
proposed in this case as "a multiple dwelling". In
my view, the Planning Appeal Tribunal was correct in deciding that the
Planning
Commission had erred in characterising the development as a "multiple
dwelling". Reg. 4 defines a "multiple dwelling" to mean "one
dwelling occupied
by more than five persons who live independently of one another and share
common facilities within that dwelling".
A "dwelling" is in turn defined to
mean "a building or part of a building used a s a self-contained
residence". The proposed
development consisted of three buildings, none of
which was intended to be occupied by more than five persons living
independently
of one another. However, while strictly speaking the proposal
was not a multiple dwelling as defined, it is fair to say that the
two larger
buildings were each in the nature of a multiple dwelling.
13. In my view, each of the two larger buildings is either
a boarding house
or hostel. The Regulations do not define either a boarding house or a hostel.
The Macquarie Dictionary defines
a "boarding house" to mean "a place, usually
a home, at which board is furnished, often with lodging." It defines a
"hostel" to mean
"a supervised place of accommodation, usually supplying board
and lodging, provided at a comparatively low cost, as one for students,
nurses
or the like." It is unnecessary for present purposes to determine whether the
two larger buildings are either a boarding house
or a hostel. According to
ordinary terminology, the proposed development is a small group of buildings
of residential scale providing
either boarding house or hostel style
accommodation with a dwelling to house a caretaker or manager. Is the
development a welfare
institution? Reg. 4 defines a "welfare institution" to
mean:
"an institution for the care and maintenance of children, the aged
or
the infirm, or a benevolent institution, but does not include a
reformative or penal institution (whether for children
or adults)".
14. The definition refers to at least four kinds of institution. The
proposed development is neither an institution
for the care and maintenance of
the aged nor of the infirm. The proposed development is intended to cater for
young people aged
between 15 and 21 years. Whatever meaning is to be ascribed
to the word "children" in this definition, it must at least exclude those
over
the age of 18 years. Given the mix of ages to be accommodated, I do not think
it is reasonable to define the development as
an institution for the care and
maintenance of children. The question then is whether the proposed
development is a benevolent institution.
15. The definition is not at all helpful. At the outset, it suffers from the
use of words or expressions which are themselves imprecise.
For example, the
word "institution" is a word of wide denotation and its meaning will depend on
its context: Stratton v Simpson [1970] HCA 45; (1970) 125 CLR 138, 144, 159. As Gibbs J said
in Stratton v Simpson at 158: "In its ordinary sense 'institution' means an
establishment, organisation,
or association instituted for the promotion of
some object, especially one of public utility, religious, charitable,
educational,
etc" (The Shorter Oxford English Dictionary).
16. The types of institution, therefore, range from benevolent or charitable
institutions
to non-benevolent or commercial organisations. There is also an
inherent want of precision in the word "benevolent": Attorney-General
for New
Zealand v New Zealand Insurance Co Limited (1936) 3 All ER 888. In some cases
the word "benevolent" has been taken to include "charitable": for example, see
Re Parker [1949] VicLawRp 23; (1949) VLR 133. In other cases, the words "charitable" and
"benevolent" have been held to have different, although overlapping, meanings:
see Chichester
Diocesan Fund and Board of Finance (Inc) v Simpson [1944] UKHL 2; (1944) AC
341. In this last mentioned decision, Viscount Simon L.C. said at page 348
that it was impossible "to decide with accuracy the ambit
of that expression".
17. In Perpetual Trustee Co Ltd v Federal Commissioner of Taxation [1931] HCA 20; (1931) 45
CLR 224 at 232 Starke J defined a public benevolent institution to mean "an
institution organised for the relief of poverty, sickness, destitution
or
helplessness": see also Dixon J at 233 and Evatt J at 235. The expression
"benevolent institution", therefore, has a denotation
wide enough to include
many different kinds of land use. It may include, for example, a school, a
child minding centre, a hospital,
a nursing home, a home for children, a home
for aged persons, a home for released prisoners or other persons in need of
assistance
or care. There are many other possible land uses which might
readily fall under the general rubric of a benevolent institution.
18. A further difficulty is that a number of benevolent institutions are
changing the manner in which they deliver their assistance
or services to the
community. Large institutional buildings typical of those built in the
Victorian era are being replaced by smaller
premises. The present case is an
instance of an intention to provide assistance to homeless young people in an
environment more like
an ordinary home than a large institution.
19. The next difficulty is that, unlike most of the definitions contained in
Reg. 4,
this definition is not descriptive of a use to which land is or might
be put or of an activity which or might be conducted upon the
land: cf
Franceschini v Melbourne and Metropolitan Board of Works (1980) 57 LGRA 284,
289. The definition might be said to describe the purpose for which land
might be used. If that is its intention, it will be very
difficult to apply
the definition because of the wide range of purposes to which a benevolent
institution might put land or buildings.
That difficulty will be compounded
by reason of the fact that both a benevolent institution and a benevolent
institution might each
use land in the same way. It is not the intention of
the definition to state that the use of land or a building by a welfare
institution
has the consequence that the land or the building is a welfare
institution. If that were so, the use of an office by a benevolent
institution would mean that the office was a welfare institution even though
it was used for no other purpose than an office. That
proposition has only to
be stated to be rejected. Similarly, if a benevolent institution owned land
separate and apart from any building
owned by it, which it developed and used
as a grassed recreation area, the land would not be a welfare institution. It
would always
be a recreation area. In other words, the nature of a
development will be determined by the features of the development and not
by
the features of the developer. It might be necessary to examine the nature of
the activities conducted by the developer but only
for the purpose of
understanding the nature of the activities intended to be conducted on the
subject land. The fact that the ACM
is a benevolent institution does not
necessarily mean that the proposed development will be used as a welfare
institution.
20. The
difficulties inherent in the fact that both benevolent and
non-benevolent institutions might use land in the same way can be illustrated
in another way. Let it be assumed that both a benevolent institution and a
non- benevolent institution seek to establish a nursing
home of identical
size, shape and construction and providing the same services. From a town
planning point of view, the implications
of each proposal are the same. They
do not alter merely because the user will be a benevolent institution in one
case but not in
the other.
21. There is another aspect of the same point. A benevolent institution will
often, if not as a general rule, provide
its services at no cost or at a
substantially reduced cost: see Evatt J in Perpetual Trustee Co Ltd v Federal
Commissioner of Taxation
(supra) at 235. Yet, it might be providing the same
kind of services or using land or buildings in the same way as another
organisation
which charges fees which reflect the full cost of the services
provided. A nursing home is nonetheless a nursing home because services
or
accommodation are provided at no cost or at a reduced cost or at full cost.
Similarly, a hostel is nonetheless a hostel if the
accommodation is provided
at no charge or for a fee. In an earlier decision in this jurisdiction, Wells
J borrowed a facon de parler
from Gertrude Stein: City of Marion v Lady Becker
(1973) 6 SASR 13, 19. If I may be pardoned for following his example, a
hostel is a hostel is a hostel just as a nursing home is a nursing home is
a
nursing home. In either case, the use of the land or buildings involves the
same planning issues. The nature of the use of premises
does not depend on
whether fees are charged. The town planning implications of the development
do not alter because a fee is charged
in one case but not in another just as
they do not alter because the developer is a benevolent institution in one
case but not in
another.
22. In addition it must be remembered that the meaning of the expression
"welfare institution" or "benevolent institution"
must be determined in the
context of planning legislation. The meaning of those expressions in other
contexts may not always be
helpful. When their meaning or application is
being determined in the context of revenue law or the law of trusts, it will
be necessary
to determine the nature and purpose of the relevant institution
in an organizational sense, that is to say, it will be necessary
to determine
its objects and the manner in which it conduct its activities. Different
issues require consideration when applying
the definitions used in the
Development Control Regulations. As the opening words of Reg. 4 state, the
definitions are for the purpose
of determining the nature of the proposed
development and whether it is a permitted or prohibited use.
23. Planning law is concerned
with the implications of a particular land use,
the traffic likely to be generated by the proposal, the adequacy of
carparking, the
height or bulk of the building in relation to the land on
which it is constructed, the nature of existing development in the locality,
the impact of the proposal on the amenities of the locality and all other
factors relevant to an assessment whether the proposal
should be permitted.
The decision-maker is more concerned with the features of the development than
with the organizational structure
of the developer.
24. How, then, is the definition to be understood and applied? The words used
in this definition are not terms
of art nor are they being used in any
technical sense. They must be understood according to their meaning in
ordinary usage. There
is an emphasis in the definition upon the word
"institution". As the Oxford English Dictionary notes, the word "institution"
is
popularly applied to a building appropriated to the work of an institution,
a usage which is also noted in the second meaning attributed
to the word in
the Macquarie Dictionary which defines "institution" in these terms:
"1. An organisation or establishment for
the promotion of
a particular object, usually one for some public, educational,
charitable or similar purpose.
2. A
building used for such work, as a college, school,
hospital, mental hospital, or the like."
25. As already noted, the definition
of "welfare institution" does not define
a use of land or buildings and it does not define the purpose for which the
land or buildings
might be used. Given that the same town planning issues
arise when land is used for the same purpose by either a benevolent or
non-benevolent
institution, it is reasonable to conclude that the definition
is intended to refer to a building or complex of buildings used by
an
institution. That is the only work left for the definition. It is intended
to refer to a large building or complex of buildings
of an institutional
character. But it is still necessary to determine the type of buildings to
which the definition refers. That
is a meaning which accords with the
ordinary meaning of "institution".
26. It is true that the character of a land use is not necessarily
to be
determined by the size of the intended development. A nursing home is still a
nursing home, whether it be relatively small
or a very large complex.
However, it is reasonable to expect that the larger the proposed development
the greater will be its impact
upon adjoining development and upon the amenity
of the locality generally. It is likely that it will generate larger volumes
of traffic and greater
demands for carparking. The bulk or size of the
buildings may adversely affect adjoining property. The example of a nursing
home
is useful. Some nursing homes are quite small. They are often large
houses which have been converted for the purpose and are not
out of place in a
residential area. Others are very large complexes and, because of their
institutional appearance or their size
and bulk, are quite out of place in a
residential area. In the final analysis it will be a question of fact or
degree whether the
proposed building will be institutional in nature. The
factors to which regard should be had might include the design and
configuration
of the building, its size and bulk and whether there is a group
or complex of buildings. The particular type of institutional use
proposed
might also be a relevant factor. I do not intend to state an exclusive list.
An exercise of judgment will be required.
Borderline cases will, therefore,
arise on which opinions may legitimately differ: Shire of Perth v O'Keefe
[1964] HCA 37; (1963) 110 CLR 529, 535. Whether the proposed development is a welfare
institution will be a question of fact and not a question of law: Brutus v
Cozens
[1972] UKHL 6; (1973) AC 854; Franceschini v Melbourne and Metropolitan Board of Works
(supra) at 290.
27. As already mentioned, the buildings in this small
complex are of a
residential scale and proportion. The development does not have an
institutional character or appearance. Further,
I think that the number of
persons to be accommodated they way they will be cared for is consistent with
describing the premises
as an institution: cf. Lorna Hodgkinson Sunshine Home
v Lane Cove M.C. (1979) 38 LGRA 282, 287.
28. For all of these reasons, I think that the proposed development is not a
welfare institution as defined in Reg. 4.
29.
It would be a desirable reform of Reg. 4 to repeal the definition of
"welfare institution". The difficulties involved in applying
the definition
have been mentioned. Further, there is little, if any, useful work for the
definition to do. The repeal of the definition
would also reduce the
potential for anomalies. If the definition is repealed, those uses to which
welfare institutions put land
which are not permitted uses would require
planning consent so that it would always be possible for either councils or
the Planning
Commission to determine whether it is appropriate to permit a
particular development and thus regulate and control where these kinds
of
developments should be located. The relevant planning authority could then
focus its attention on the planning merits or otherwise
of the particular land
use proposed instead of being distracted by considerations of whether or not
the proposal is a welfare institution.
30. For all of these reasons, the appeal is allowed.