Victorian Civil and Administrative Tribunal|2003-10-16

Cobden v Greater Bendigo CC [2003] VCAT 1395 (16 October 2003)

PLANNING AND ENVIRONMENT LIST Tribunal No. P001367/2003

RESPONSIBLE AUTHORITY: Greater Bendigo City Council

MEDIUM NEUTRAL CITATION: [2003] VCAT 1395

Planning; Planning and Environment List; Residential Drug and Alcohol Detoxification Accommodation; whether a community care unit; Clause 52.24 planning scheme; self-contained accommodation; whether "accommodation" is essential ingredient of a community care unit; meaning of "clients" of community care unit.

Planning Scheme provisions: Clauses 16, 52.22, 52.23 and 52.24

Intervarsity Developments Pty Ltd v/ City of Frankston [2001] VCAT 833

Moreland CC v. Stranaghan [2001] VCAT 1081

"Community care unit", "crisis accommodation", "shared accommodation", "clients" and "self-contained accommodation".

Mr T Chay, Solicitor of the firm of John R Burman and Co. Solicitors appeared for the applicant.

Mr Ross Douglas, Town Planner of the City of Greater Bendigo appeared for the Responsible Authority.

Mr E Stockans, Solicitor of the firm of Russell Kennedy Solicitors appeared for the Respondent Bendigo Community Health Services Inc.

Mr Matthew Townsend, Barrister, appeared on the instructions of the Legal Services Unit of the Department of Human Services for that Department.

Each representative made written and oral submissions except Mr Douglas who made brief oral submissions substantially adopting the arguments put by Mr Townsend and Mr Stockans. Various affidavits and exhibits had been filed.

Application under Section 149B of the Planning and Environment Act 1987 (PE Act) for declarations.

For declarations that the proposed use of the land for a Drug and Alcohol Residential Withdrawal Unit is not a Community Care Unit within the meaning of Clause 52.24 of the planning scheme and that the proposal does require a planning permit pursuant to the Residential 1 Zone provisions in Clause 32.01 of the planning scheme.

Residential 1 Zone and subject to a Development Plan Overlay under the Greater Bendigo Planning Scheme.

1. In this case the Bendigo Community Health Services Inc. (the Service) and the Department of Human Services (the Department) propose to use an existing building in a Residential 1 Zone at 137 Holdsworth Road, Bendigo as an adult residential withdrawal unit for people suffering from alcohol or drug dependency. The property will be owned by the Department and the ongoing project will be financed by the Department. The Service has entered into an elaborate and detailed health service agreement with the Department whereby the Service would manage the facility subject to detailed control of the Department, including control of criteria for admissions.

2. The facility would have 4 bedrooms for people deriving benefit from the facility, and other accommodation and facilities for supervising staff. One of the 4 bedrooms would be for occupation by benefiting patients during the first period after admission. Thereafter they would be relocated to another bedroom. The first bedroom has special facilities. It would be a voluntary facility with nobody detained compulsorily. Detoxification and methadone would be used, but only for people residing in the facility. Referrals would include self-initiation, general practitioner, departmental, court and other referrals, but admissions would be subject to screening for suitability in accordance with departmental requirements. Patients might have other mental, physical or intellectual disabilities requiring medium to long term rehabilitation, but residency in this facility would be for an average of 10 days. It is intended to be residential and personal in scale with patients encouraged to participate in cooking and domestic care tasks according to capacity. The building has previously operated as a special residential service accommodating up to 10 persons not capable of independent living. Some adaptions would be necessary for the proposed new use. The facility is to be self contained in the sense of providing cooking, washing, laundry and like facilities for the unit as a whole, but with patients sharing such facilities whilst having separate bedrooms.

3. The issue in this case is as to whether the proposed use of the land requires planning permission.

4. The land is in a Residential 1 Zone. Land uses in the zone are controlled by the zone provisions in Clause 32.01 of the planning scheme including the table of uses found in Clause 32.01-1. Many land use terms are defined in Clause 74 of the planning scheme.

5. According to the table of uses, accommodation (other than dependent person's unit and dwelling) are Section 2 uses for which a planning permit is required. Dependent persons unit and dwellings (other than bed and breakfast) are Section 1 uses for which no permit is required. The applicant is of the view that the proposed use is accommodation, for which permission is required, or otherwise a use not specified in Sections 1 or 3 of the table. A permit is also required for such innominate uses, as they are in Section 2 of the table. In the application for declaration it is suggested that the specific form of accommodation relevant here is group accommodation. If that was correct, a permit for that use would be required.

6. However, the planning scheme contains some particular provisions that involve accommodating people in relation to which no "use" permit is required. These particular provisions are found in Clauses 52.22, 52.23 and 52.24 of the planning scheme. These Clauses refer to "CRISIS ACCOMMODATION", "SHARED HOUSING" and "COMMUNITY CARE UNIT" respectively.

7. The third of these, in Clause 52.24, concerns "COMMUNITY CARE UNIT". The Responsible Authority, the Service and the Department are all of the view that this proposal is for a community care unit under that provision and that consequently no permit is required for the proposed use of the land.

8. The declaration application, as originally drafted, included some reference to development, and to whether permission for development was required. However paragraph 4 of the written submissions on behalf of the applicant make it clear that the declarations sought are in relation to the use, rather than the development, of the land. Declarations are sought that the proposed use is not for a community care unit within the meaning of Clause 52.24, and that it requires planning permission pursuant to the Residential 1 Zone provisions in Clause 32.01 of the planning scheme.

9. To determine whether this proposal is a community care unit within Clause 52.24 of the planning scheme it is, of course, necessary to consider the terms of that provision. I will set them out hereunder. Before doing so I wish to refer to a statement made in the course of the hearing, and also in the reasons given by the Tribunal for its determination of Intervarsity Developments Pty Ltd v City of Frankston (2000/80602) [2001] VCAT 833, to the effect that community care unit is not defined in the planning scheme. In fact, the Intervarsity case was not primarily about a community care unit. It was suggested that the proposal, in that case, fell within the second of the three purposes exempt from needing a use permit, namely "SHARED HOUSING" to which Clause 52.23 of the planning scheme applies. It is true that these three exceptional uses in relation to housing, namely community care unit, shared housing and crisis accommodation, do not appear in the land use terms and the definitions of such terms set out in Clause 74 of the planning scheme. Also, they do not appear in the table of uses in Clause 32.01-1 relevant to the Residential 1 Zone, or indeed in relation to the other equivalent tables of uses in the zone provisions relevant to other zones in the planning scheme. They are not defined in Clause 74. That does not mean that they are not defined in their relevant particular provisions. In relation to community care unit, if the specifications of Clause 52.24 are satisfied, then a particular proposal or use is a community care unit, exempt from any need to have a planning permit for the use, and is clearly defined, at least to that extent.

A permit is not required to use a building for services funded by the Department of Human Services which provide self contained accommodation for its clients if all of the following requirements are met:

* The building or buildings are in an area or zone which is used mainly for housing.

* No more than 20 clients plus supervisory staff are accommodated on the site."

11. It is common ground, and admitted on behalf of the applicant, that a number of the requirements of the above provision are satisfied in this case. It is admitted and agreed:

a) that the building is in an area and in a zone which is used mainly for housing;

b) the services are funded by the Department of Human Services; and

c) no more than 20 clients plus supervisory staff are to be accommodated on the site.

12. However, there are three elements which are said by the applicant not to be satisfied and that the proposal consequently cannot be a community care unit. The allegedly missing elements are:

ii) the "clients" are not confined to clients of the Department; and

13. At the end of the hearing I said that I was not satisfied that there was any substance in either of the first two of these propositions but that I would give further consideration to the question of self-contained accommodation. I am now satisfied that the case put in relation to this third point is also mistaken and that there is no basis for making the declarations to the effect that this proposal is not for a community care unit and a permit is required for the use proposed.

14. The argument in favour of the first suggested disqualifying element is to say that the service being funded must be, at least primarily or essentially, an accommodation service. It is not sufficient, it was argued, for the main purpose, or a main purpose, to be the provision of medical, counselling and other services for the assistance and support of persons afflicted with alcohol or drug dependency, and where the accommodation aspect is merely part of the set-up to enable such other services to be provided. Some illustrations were employed to elucidate the argument. A hostel might be primarily to provide accommodation but, in the case of a boarding school, the essential activity is education, and the accommodation is ancillary in abling the achievement of the primary purpose. It was argued that to satisfy Clause 52.24 accommodation must be the service being provided, as in a hostel; and not part of providing another service that includes an accommodation element, as in a boarding school.

15. It is perfectly true that this proposal, and the idea of a community care unit, both involve the notion of accommodation. People, and notably the people to derive benefit from the services, are to live or be housed in the facility whilst receiving its services. I can see no justification at all for the suggestion that accommodation, to the exclusion of providing other services needed by the proposed inmates, must be the sole or even the principle objective of the facility. It is a part of the services proposed that people will live in, and that the unit will be situated in a residential and community context. The persons receiving services are to be housed in a situation that is of a domestic scale and where they can be encouraged and assisted to learn or perform domestic tasks such as cooking, washing up, cleaning and the like. Accommodation is integral to what is proposed, but it is not to the exclusion of the other aspects of services and supports that are intended. It seems to me that the very name "community care unit" implies the provision of care in addition to mere accommodation. Such units are not intended to be mere public housing for people otherwise able to support or look after themselves.

16. I do not think that it is necessary to go beyond what I have said in relation to this first "accommodation" argument. However, Mr Chay, on behalf of the applicant, argued that if and where there is ambiguity in Clause 52.24 it is proper to construe such a statutory provision, in accordance with Section 35 of the Interpretation of Legislation Act 1984, in such a way as to promote the purpose or object underlying the provision, in preference to another construction that would not promote that object. That, of course, is a recognised principle of statutory interpretation, now embodied in Section 35(a) of the Interpretation of Legislation Act. Section 35(b) of that Act goes on to say that consideration may be given to various extraneous documents, extraneous that is to the statutory provision itself, for the purpose of ascertaining what the purpose or object underlying the provision might be. In this connection Mr Chay referred to the explanatory report accompanying the original planning scheme amendment to which Clause 52.24 is a successor. That amendment was included in the then applicable planning scheme in the mid 1990s. He refers to a number of such extraneous documents. If it was necessary and appropriate to go to the explanatory report and the other documents he has referred to, they make it abundantly clear that the notion of a community care unit it is not confined to accommodation, but rather envisages the provision of the services beyond mere accommodation in a residential setting of which accommodation is an essential ingredient. In particular there are references to people with psychiatric problems, but the notion is not limited to that form of disability as there are other references to drug and alcohol problems. I am satisfied on the point without reference to extraneous documents, but reference to them confirms that the notion is not limited to accommodation, as suggested on behalf of the applicant. I do not think it is necessary here to discuss particular extraneous items piece by piece.

17. The second point as to which I announced satisfaction at the conclusion of the hearing is the objection in relation to "clients". There was discussion as to the meaning of the word client. Like most English words it has various meanings, or at least shades of meaning, depending on context. The most general meaning, in my opinion, is that a client is the customer, usually the paying customer, of someone offering professional services such as a lawyer or an accountant. Customer of a medical practitioner is more commonly called a patient. A customer of a tradesman or a regular customer of a shop might sometimes be referred to as a client.

18. The suggestion here is that the client must be a client of the Department and that the people who receive services here will not be clients of the Department, but rather clients of the Service. I do not think that this is at all apparent on the facts. Such people may be in fact clients of the Department, in that it will own the land and finance the undertaking, even though management will be through the agency of the Service. I suppose a client dealing with the agent of a principal is really the client of the principal. He or she may, in fact, be a client of both the Service and the Department. I do not think that any of this matters. I am satisfied that the word "clients" as it appears here is merely intended to refer to the people who are to benefit by the services provided.

19. The word "clients" may be something of a euphemism, but I think it means no more than patients or inmates. Words in the English language commonly change their shade of meaning over time. The 18th and 19th century meanings of words like charity, asylum and intercourse have taken on new meanings or new shades of meaning that represent a mere fraction of their original meanings. Some are used as euphemisms that affect their meanings, so that, with the passage of time, new euphemisms are needed. The Bendigo Benevolent Home of the 1950s was originally the Bendigo Benevolent Asylum, but has now been renamed to exclude both "benevolent" and "asylum". The word patient has connotations of illness and inmate, may have connotations of confinement, even penal confinement. Whether or not "clients" is used here in a somewhat euphemistic way, I am satisfied that it means no more than those persons who are to derive the benefit of the services to be offered and whether or not they are clients of the Service and/or the Department.

20. One aspect of this argument was to suggest that the clients had to be pre-existing clients of the Department (or its predecessor). The amendment bringing community care units into planning schemes in the mid-1990s had some relationship to the deinstitutionalisation of psychiatric patients. It was apparently contemplated that some, perhaps many, psychiatric patients previously held or accommodated in larger institutions should be returned to the community and housed in small domestic scale units. Even if people previously accommodated in large psychiatric institutions were thereafter to be accommodated in community care units, it does not follow, as suggested by Mr Chay, that people accommodated in community care units are to be limited to those previously accommodated in the Department's other larger psychiatric institutions. If that was so, then the need and occasion for community care units would cease sometime after all clients had been relocated into them. There would be no supply of new clients. As existing ones ceased to need community care unit accommodation, the units would become redundant. In fact, new cases needing such care would presumably go straight to a community care unit without ever having been previously accommodated in a larger institution. I certainly reject the notion that "clients" of a community care unit, including a contemplated new community care unit, need previously have been patients of a larger psychiatric institution conducted by a predecessor of the Department. I am satisfied that new candidates can arise from time to time and may be referred for assessment and, if appropriate, admission from time to time.

21. Mr Chay's third point is in relation to the accommodation being "self-contained". It is common ground that this contemplates accommodation that has its own cooking, eating, laundry, washing and toilet facilities. The community care unit must be self-contained in that sense. The question is, does the unit as a whole have to be self-contained in that sense for all of its clients who reside within it, or, to qualify as a community care unit, must there be separate self-contained accommodation for each individual client? This latter proposition would involve there being a series of self-contained flats or dwellings, rather than an accommodation "unit".

22. Mr Chay argues that each client must have separate self-contained accommodation or alternatively that Clause 52.24 is ambiguous by not making it clear as to whether it is the unit as a whole, or the individual bedrooms, that must be self-contained. Where there is such ambiguity, he argues, reference to the extraneous sources is justified. In that connection I agree with the submissions put against him that there is nothing in the extraneous sources he has referred to, to justify the notion that a community care unit must contain a separate self-contained dwelling for each client, as opposed to a bedroom within a unit that is, itself, self-contained.

23. In fact, it is quiet contrary to the notion of a community care unit, insofar as the purpose can be elucidated from such documents, for there to be this separateness and self-contained arrangement. The sort of care, support and encouragement envisaged involves separate bedrooms and shared facilities. That is quite apart from the financial extravagance that would be involved in providing separate self contained dwellings. I do not imagine that there would ever be any community care units financed from public funds if that is what the concept contemplated. I do not think Mr Chay's argument is viable, in terms of the services to be provided, or the cost of providing them.

24. I am satisfied that "self-contained" here means that the unit itself, and the accommodation it provides, must be self-contained; not that each bedroom must be self-contained.

25. In this connection Mr Chay's argument took me to the policy provisions in relation to housing found in Clause 16 of the planning scheme, and in particular, the provisions under the heading "Crisis accommodation and community care units" in Clause 16.04. This is a policy provision and indicates certain purposes of planning scheme provisions including the three exceptional particular provisions in relation to housing previously mentioned, namely crisis accommodation, shared housing and community care units. In dealing with Clause 16.04 it is as well to have Clauses 52.22 and 52.23 in relation to crisis accommodation and shared housing in mind. The fore-runners of these provisions were introduced into Victorian planning schemes at an earlier stage than community care units, in fact during the 1980s. They read respectively as follows:

A permit is not required to use a building, including outbuildings normal to a dwelling, to house people and any dependents at times of personal emergency or crisis if the building meets all of the following requirements:

* Is in an area or zone which is used mainly for housing.

A permit is not required to use a building, including outbuildings normal to a dwelling, to house a person, people and any dependents or 2 or more people (including people with intellectual disabilities) if the building meets all of the following requirements:

* Is in an area or zone which is used mainly for housing.

26. It can be seen that each of these two concepts, together with that of community care units, involve "self-contained accommodation". As with community care units, the point may be argued as to whether this means self-contained for the facility as a whole, or self-contained in respect of each personal room. It is obvious that both crisis accommodation and shared housing are limited in size. They are limited to not more than 10 habitable rooms. If that limit is exceeded a particular facility will not be crisis accommodation or shared housing, but presumably some other form of accommodation.

27. So far as crisis accommodation is concerned, it is accommodation to be provided to people in circumstances of personal emergency or crisis. No such circumstances are specified in relation to shared housing. The reference to people with intellectual disabilities is inclusive, not exclusive.

28. I make these references to crisis accommodation and shared housing, not only because of reference having been made to Clause 16.04, but also reference was made to them in the Intervarsity case referred to above. The Intervarsity case contains some discussion of the policy provisions in Clause 16.04 and the notion of self-contained accommodation, specifically in relation to shared housing, with arguable applicability also to crisis accommodation and community care units.

29. I go first to Clause 16.04. It is in the following terms:

"16.04 Crisis Accommodation and community care units

To encourage the establishment of crisis accommodation and community care units in residential areas and to ensure that their location is kept confidential.

Planning schemes must not require a planning permit for or prohibit the use of a dwelling of up to 10 habitable rooms in a residential area as shared housing or crisis accommodation.

Planning schemes must not identify the site of a community care unit or a dwelling used for crisis accommodation as having that use.

Planning schemes must not require a permit for or prohibit the use of buildings for community care units (accommodation for not more than 20 clients plus supervisory staff) in areas used mainly for housing."

30. I think it is notable that these policy provisions refer to the locations of shared accommodation and crisis accommodation as being "dwellings". Dwelling is defined in Clause 74 of the planning scheme to mean, for the purpose of the planning scheme, a building used for a self-contained residence. The full terms of the definition are:

"A building used as a self-contained residence which must include:

It includes out-buildings and works normal to a dwelling."

31. In the Intervarsity case Mr. Ian Pitt, SC, appeared for the applicant. The reasons given in that case include extensive quotations from and references to his submissions, including what follows. He quoted the earlier definition of dwelling that applied prior to amendment 372 to the Melbourne Metropolitan Planning Scheme gazetted on 30 July 1986 as follows:

"Any building or portion of a building including such outbuildings as are normal to the enjoyment of a dwelling which is used or intended, adapted or designed to be used for the purpose of a residence by a single family or an occupier having a right to the exclusive use thereof and which contains bathing or sanitary facilities within its bounds, but does not include a residential building, apartment house, motel or women's refuge.

The reference to "a single family or an occupier" is clear enough_._ By Amendment No 372 the definition became:

"Dwelling means any building or portion of a building including outbuildings which are normal to the enjoyment of a dwelling, which is used or intended, designed to be used either temporarily or permanently for the purpose of human habitation by _

(c) two or more persons who do not comprise a single family

where such building or portion thereof does not comprise more than 10 habitable rooms, and which provides self-contained living accommodation but does not include a residential building or a motel."

32. The change in relation to the need for family is important. It will be discussed further in paragraph 41 below.

33. To return to Clause 16(4), it can be seen that certain characteristics of each of the three types of facility intended to be in common with the other two. They are to be located in areas or zones used for residential purposes and when so located they are not to be prohibited and they are not to require a planning permit for the use of the land, provided certain characteristics are satisfied. This policy can be seen as realised in the respective wording of Clauses 52.22, 52.23 and 52.24.

34. Another thing that they have in common is that they are all mentioned in Clause 16.04, although shared accommodation, mentioned in the text, is omitted from the heading of that clause. I will return to that point.

35. Apart from the characteristics that they all share, there are certain characteristics that two, but not the third, share. When I say they share them, they share them in the policy provisions of Clause 16.05 and in the implementation provisions of Clauses 52.22, 52.23 and 52.24.

36. All these facilities are to be limited in size, but the first two are to be limited by the number of habitable rooms, and the third, namely community care units, is to be limited by the number of clients.

37. A particular policy concern, expressed in the objective and in the second paragraph of general implementation part of Clause 16(4), is that confidentiality of location is required in relation to two, but not the other, of these types of facilities. The two requiring confidentiality, for obvious reasons when their nature is borne in mind, are crisis accommodation and community care units. There is no particular need for confidentiality of location in relation to shared housing. Perhaps this is the explanation for the omission of shared housing from the heading to Clause 16.04 which mentions only crisis accommodation and community care units. That is inspite of the fact that its earlier equivalents, before community care units came along, mentioned crisis accommodation and shared housing.

38. I think this is an inadvertent and unfortunate omission, and that shared housing should also be included. The policy provisions include not only the notion of confidentiality as to location applicable to the first and third facility, but also the ideas of the three uses being not prohibited and not requiring a permit when of limited size and in a residential zone or area.

39. In the Intervarsity case there has been an attempt to interpret these policy provisions, and even the implementation provisions, in terms of the heading to Clause 16.04 on the basis of the omission of shared housing from its heading. If the Intervarsity case is suggesting that there is no such concept in the planning scheme as shared housing as distinct from crisis accommodation and community care units, then I must respectfully disagree. Each of the three exemptions is clearly a separate and distinct concept with its own "particular provision" in Clauses 52.22, 52.23, 52.24 respectively. No wording in or omission from the heading of Clause 16.04 can alter that. In my opinion there is nothing in the implementation provisions or the policy provisions to justify the notion that the term "shared housing", where it appears in any of them, is merely a subset or part of crisis accommodation or community care unit. The separate existence of Clause 52.23, in my opinion, prohibits such a notion. I think it is clear that the expression "shared housing" in the first paragraph under general implementation in Clause 16.0-4-2 refers to shared housing in terms of Clause 52.23.

40. As I have said, in the reasons given in relation to the Intervarsity case the Tribunal quotes extensively from the submissions made by Mr Ian Pitt on behalf of the applicant in that case. The applicant there was seeking a declaration that its facility was shared accommodation and thus needed no planning permit. These submissions dealt extensively with the concept of shared housing, and to a lesser extent the other two exceptional uses, and the history of the relevant provisions in relation thereto, including their first introduction into planning schemes in Victoria, their subsequent evolution and also the purposes lying behind their introduction into the planning scheme. The crisis accommodation was in relation to the need for people sometimes to have refuge from difficult or dangerous domestic situations. Shared housing, in accordance with Mr Pitt's submissions and the various considerations produced in support of them, was for a different purpose.

41. At the time of its introduction there was the already quoted restricted definition and concept of dwelling in Victorian planning schemes. It was a notion limited to households constituted by families and excluded shared accommodation where the people sharing it were not related or not part of a single family unit. The notion of the change was to include the situation where, for example, a group of students or others who are not married occupied the dwelling together. This could include unmarried or unrelated people who nevertheless had a sexual relationship, whether heterosexual or homosexual, or unrelated people that did not. Indeed it was to exclude such considerations from having planning relevance. The notion was that if a residential dwelling was not above 10 habitable rooms in size, then the community, and the planning controls, need have no interest in the relationship or arrangements between the occupants. Such an arrangement would not be one where planning permission was required.

42. The self contained aspect of the accommodation was specifically that the self-containment related to the housing unit as a whole, indeed the dwelling as a whole, and not to individual rooms of individual inmates.

43. In the definition of dwelling it is the building constituting the dwelling that must be self-contained and that must have cooking facilities, kitchen sink etc. There is no notion in the present definition that the inhabitants must be married or related or anything of that nature. The notion of family, originally connected to the idea of dwelling, has now been disconnected.

44. The submissions of Mr Pitt, based on the history and origins of the relevant provisions, and the evidence in relation thereto, conclude that these purposes in relation to shared housing were achieved and have been carried forward in the current planning schemes, particularly by Clause 52.23 when properly interpreted.

45. I find Mr Pitt's case, as recited in the reasons in the Intervarsity case, very persuasive, but the Tribunal in that case came to a different conclusion. Indeed it came to a conclusion that is quite contrary, by interpreting the shared housing provisions on a basis that depends on the commercial and private arrangements amongst the occupants of the house with each other and with their landlord. Apparently the arrangement in that case would be considered to be shared housing if the occupying students had, as a group, let the whole premises from the landlord, or perhaps if one of them had let the whole premises and sub-let to the others. The problem perceived was that the individuals each had a separate contract with the landlord which entitled each of them to separate occupancy of one bedroom with shared use of other facilities including lounge room, kitchen, toilet, bathroom and the like. That appears to be just the sort of arrangement that the shared housing provisions intend to treat as a normal dwelling, without regard to commercial and personal arrangements and relationships, provided a certain size of 10 habitable rooms is not exceeded. Such an arrangement has the appearance of a dwelling to the outside world. In fact it complies with the new definition of dwelling. Such arrangements, according to my understanding of the shared housing provisions, would only need planning permission if the limitations like limit on habitable rooms was exceeded.

46. The Intervarsity case however concluded that self-contained accommodation did not mean the dwelling as a whole shared by the occupants, but meant the separate room of each inmate. Mr Chay has sought to carry that understanding of self-contained accommodation over into the present discussion of community care units.

47. Part of the approach in Intervarsity was to rely on the heading to Clause 16.04 to interpret the policy provisions under it and then to rely on what may be a partly misconceived understanding of the policy provisions to interpret the actual implementation provision of Clause 52.23.

48. At paragraph 8 of the reasons in Intervarsity the following appears:

"I think that 16.04-1 is, as the heading indicates, a policy relating only to Crisis Accommodation and Community Care Units and 16.04-2 is intended to implement that policy and no more. Clause 16.04-1 says nothing about other forms of accommodation. It would seem to be the background to the Shared Housing provision in the Frankston Planning Scheme referred to below. Mr Pitt points to the word "or" in the last line of the first paragraph of 16.04-2 as being disjunctive. It is, but I think that it is still only concerned with implementing the policy to be found in 16.04-1 and the words "shared housing" in this context are clearly intended to refer only to "community care units_" as distinct from_ "crisis accommodation". That is the significance of the word "or"..

49. It will be apparent from what I have already said that I respectfully disagree with this. I think it is clear that shared accommodation is referred to specifically and separately, and with Mr Pitt, I think the word "or" at the end of the first paragraph under general implementation in Clause 16(4) makes this clear. The proposition in Clause 16.04-2 that planning schemes are not to prohibit or require permits for shared housing "or" crisis accommodation means that such requirements or prohibitions are not to be imposed in relation to either shared housing or crisis accommodation if they are in a dwelling in a residential area and have up to 10 habitable rooms.

50. The passage in the Intervarsity reasons that particularly relates to the self-contained accommodation notion is paragraph 34 which reads:

"34. It is not disputed that the building is in an area or zone which is used mainly for housing. I also assume for this purpose that it has no more than 10 habitable rooms. The last requirement is that it must provide self contained accommodation. There is no doubt that the whole building itself meets this requirement. However, individual tenancies will not provide self contained accommodation because the kitchen, laundries, bathrooms and living area have to be shared. Mr Rantino submits that this is not providing "self contained accommodation". I agree. It is the accommodation provided that must be self contained, not the building. The Applicant is proposing to enter into a separate tenancy agreement with each resident. It is offering separate accommodation to each and the legal right that each of them has to be accommodated is separately derived from the Applicant. No resident will be provided with self contained accommodation. If the Applicant rented the whole house to a group of people it could be said that they were jointly provided with self contained accommodation in that each would have been given an undivided part of the whole house, including all its facilities. But where it deals with them individually and confers separate tenancy rights on each for the exclusive use of part of the premises and only the shared use of the essential facilities, not one of the occupants is provided with self contained accommodation.

51. It can be seen that this passage depends not on the basis of the appearance of a 10 habitable room place to the world, but on the private commercial arrangements with the landlord. I note that the Intervarsity case has been followed, although without any considerable analysis of the arguments, in Moreland CC v Stranaghan [2001] VCAT 1081. However, I must respectfully reserve my doubts about that decision in relation to the concept of shared housing.

52. For present purposes I am concerned with whether the facility in the present case can be declared to not be a community care unit. I am persuaded that self-contained accommodation in Clause 52.24 in relation to community care unit means that the unit, not individual rooms, is to be self-contained. I am not dissuaded from that view by consideration of the policy provisions in Clause 16.04 or the arguments and conclusions reached in the Intervarsity case.

53. Some of the extraneous material referred to in relation to community care units contemplated the possibility of more than one community care unit being clustered together. In that circumstance, each unit would have to be self-contained, but not each bedroom in each unit. In circumstances where there is an isolated community care unit, as proposed here, again it must be self-contained as a unit, but not as to each room.

54. Mr Townsend pointed out, quite correctly in my opinion, that in any event, in this proposal there are not to be separate contractual relations with the "clients" or if there are, that will not afford such clients exclusive right to the use and occupancy of a room. This right of exclusive occupancy was a factor relied upon in the Intervarsity case. In this case occupants will be moved from one room to another, as their condition progresses.

55. I note that Mr Townsend was ready to meet an anticipated argument that community care units related only to psychiatric patients and not to persons with drug or alcoholic problems. However, Mr Chay did not put that point, but specifically disavowed it when Mr Townsend raised it.

56. It will be recalled that the application for declarations suggested that the use proposed was not a community care unit but rather one of the sub-groups of accommodation in the land use terms of Clause 74 and as appearing in the various tables of uses in the various zone provisions. The suggestion was group accommodation which is defined as:

Land in one ownership, containing a number of dwellings used to accommodate persons away from their normal place of residence."

57. This proposal is not, in my opinion, group accommodation. It does not contain a number of dwellings, but only one unit or dwelling. Ironically, if it provided separate self-contained accommodation for each of four clients, it may be group accommodation. That is not what is proposed.

58. For these reasons I refuse the application for declarations that this proposal is not a community care unit within the meaning of Clause 52.24 of the planning scheme or that it requires a planning permit. I consider the contrary to be the correct understanding of the situation.

Legislation Act 1984

Environment Act 1987

Cobden v Greater Bendigo CC [2003] VCAT 1395

At a glance

Court

Decision date

Source

Judgment (102 paragraphs)

Cobden v Greater Bendigo CC [2003] VCAT 1395 (16 October 2003)

Parties

Legislation Cited (2)