1. Pursuant to section 149A of the Planning and Environment Act 1987 I declare that:
   • (a) Buildings and works for the extension of a building used for the purpose of a Community Care Unit in accordance with the requirements of clause 52.24 of the Maribyrnong Planning Scheme do not require a planning permit pursuant to clause 32.01-6 of the planning scheme.

Section 149A Planning and Environment Act 1987 - application for declarations

That buildings and works for the extension of a building used for the purpose of a Community Care Unit in accordance with the requirements of clause 52.24 of the Maribyrnong Planning Scheme do not require a planning permit pursuant to clause 32.01-6 of the planning scheme.

Development Contributions Plan Overlay (Schedule 2)

1. The Department of Human Services owns the subject land and uses it for the purpose of a community care unit. The Department proposes to construct extensions to the existing building by creating a new programme room, extending an existing meeting room and creating a new office and new consultation/counselling room.
2. The parties agree that this facility meets all the criteria set out in clause 52.24 of the Maribyrnong Planning Scheme.[1] It is therefore exempt from the need for a permit for use. However, there is a dispute between the Department and the council about whether it is also exempt from the need for a permit for buildings and works under clause 32.01-6.

1. The Department says that clause 52.24 effectively makes a community care unit a deemed section 1 use within the zone provisions. As such, it says the provisions of clause 31.02-6 do not apply and no planning permit is required for buildings and works.
2. In the Residential 1 Zone, clause 32.01-6 provides as follows:

Buildings and works associated with a Section 2 use

A permit is required to construct a building or construct or carry out works for a use in Section 2 of Clause 32.01-1.

1. Community care unit is not a use that is separately defined in clause 74, nor does it appear within the nesting diagrams in clause 75. I find that the use of community care unit falls with the broad definition of accommodation.[2] Accommodation is a section 2 use in clause 32.01-1. Thus, the use will require a permit in the Residential 1 Zone unless it falls within the exemption created by clause 52.24. This clause sets out certain criteria which, if met, exempt a community care unit from the need for a permit for use. The question is whether the exemption in clause 52.24 notionally moves the use into section 1 of the table of uses in clause 32.01-1 or whether it remains within section 2 of the table and is therefore caught by the requirements of clause 32.01-6.

1. I do not consider the use of community care unit is lifted entirely outside the ambit of the framework provided by the zone (or overlay provisions, where relevant) by reason of the exemption in clause 52.24. The land remains within the relevant zone. The zone provisions will "kick in" if any of the criteria of clause 52.24 are not met or cease to be met, just as they did in respect of the shared housing use in Armato v Hepburn SC[3].
2. In Armato, short term rental accommodation was found to come within the definition of accommodation and require a planning permit if it was not exempt under the provisions of clause 52.23. In that case, one criterion under clause 52.23 was not met - the building had more than 10 habitable rooms. Hence, I found that it was not exempt under clause 52.23 from the need for a permit. As the use of the land was characterised as accommodation, which was a section 2 use, a planning permit was therefore required to use the subject land.
3. A similar view about the operation of particular provisions in the planning scheme was taken by the Tribunal in The Club Cape Shank Resort v Mornington Peninsula SC[4] and Sharkey v Golden Plains SC[5]. In each case, the Tribunal found that the particular provisions do not replace or exclude zone or overlay or other provisions, but must be read in conjunction with them. Where both can be applied, at least where there is no inconsistency or incompatibility between them, both do apply.[6] Senior Member Byard said in Sharkey:

[48] That does not mean that a specific provision expressed to overrule or exclude some other provisions does not have that effect. However, such exclusion or overruling would be expected to be explicit, or at least be by necessary implication. Furthermore, such exclusion or overruling would only be to the extent explicitly stated, or at any rate, to the extent dictated by necessary implication.

1. Thus, whilst clause 52.24 explicitly excludes the zone provisions requiring a permit for use, the question is whether the permit requirement under clause 32.01-6 for buildings and works is, by necessary implication, also overridden.

Is a permit for development excluded by necessary implication?

1. Council says that clause 52.24 cannot be read to cover buildings and works by necessary implication for several reasons.
   • First, clause 16.04 provides the policy background to clauses 52.22, 52.23 and 52.24. The overriding purpose behind clause 16.04 is to protect these sensitive uses from identification and discrimination - not to protect buildings or works.
   • Secondly, there are plenty of other particular provisions that expressly apply to use and buildings and works such as Clauses 52.04, 52.15 and 52.25. If clause 52.24 was intended to cover buildings and works, it would have expressly stated so.
   • Finally, in a practical sense, it is not unusual or unreasonable that the structure of a building or works for a community care unit is open to planning scrutiny and assessment. This applies to many buildings used for section 1 uses, such as dwelling/s in a Residential 1 Zone (on certain lot sizes or medium density housing) or an office in a Business 1 Zone.
2. Throughout the planning scheme, the common purpose of decisions is stated to be: "To implement the State Planning Policy Framework and the Local Planning Policy Framework."
3. Clause 16.04 of the State Planning Policy Framework provides:

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 (with accommodation for no more than 20 clients plus supervisory staff) in areas used mainly for housing.

1. A fundamental objective of this policy is to ensure that the location of community care units is kept confidential. This objective would be undermined if a planning permit was required for any buildings and works associated with a community care unit. The notice provisions of section 52(1) of the Planning and Environment Act 1987 would effectively alert the community, or at least the neighbours, to their location.
2. In my view, there is little point in exempting the use from a permit if buildings and works are not also exempt. The underlying purpose of clause 52.24 is to advance the objectives of clause 16.04-1, which includes keeping the location of community care units confidential. Adopting a purposive approach, the preferred interpretation of clause 52.24 is the one that will best advance this objective.
3. In Vestey v Warrnambool CC[7], Justice Bell was required to interpret the definition of adult sex bookshop in the planning scheme. In outlining his approach to this task, Justice Bell said:

[17] Following the modern approach to interpreting legislation,[8] the particular provisions of the scheme (which is subordinate legislation) should be interpreted in the context of their object and purpose at the first instance, and not just in case of ambiguity, as are the provisions of the Planning and Environment Act under which the scheme was made.[9]

1. There are three particular provisions in the planning scheme dealing with crisis accommodation[10], shared housing[11] and community care units[12] that implement the provisions of clause 16.04. The history of these provisions is recounted in Knox CC v Tulcany Pty Ltd[13]. These provisions were first introduced into the Melbourne Metropolitan Planning Scheme in 1989. At that time, the planning scheme structure was use driven: i.e. if the scheme allowed land to be used for a particular purpose, it could be developed for that purpose provided all the requirements of the scheme are met. The very clear distinction between use and development, and the need for separate permits for use and development, which is evident in current planning schemes based on the Victoria Planning Provisions, was not so marked in the Melbourne Metropolitan Planning Scheme.
2. The council submitted that when these provisions were translated into the new format planning schemes as particular provisions, the language was not upgraded to reflect this distinction between use and development. Thus. the provisions continued to simply state that no permit is required "to use a building or buildings_"_ for a community care unit without also inserting the additional words "or develop_"_, which the structure and format of the new format planning schemes now strictly require.
3. An examination of the wording of the relevant provisions of the former Melbourne Metropolitan Planning Scheme lends support to this argument. The wording of the provisions relating to crisis accommodation, shared housing and community care units is the same as currently found in the particular provisions of the present planning scheme.
4. I consider that clause 52.24 should be interpreted in this context. In my view, to give effect to the objectives of clause 16.04 and to provide the same ambit of exemption as existed for community care units when the exemption was first introduced into the planning scheme, clause 52.24 must be interpreted as though it read as follows:

No permit is required to use or develop a building or buildings for services funded by the Department of Human Services which provides self contained accommodation for its clients if all of the following requirements are met...

1. I am not persuaded by the council's arguments that any good purpose would be served by requiring a permit for the development of community care units when no permit is required for their use. To meet the criteria in clause 52.24, they must be of a residential scale. There is no reason to suppose that the relevant building regulations cannot adequately control building related issues in the same way as they control single dwellings, which do not require a planning permit in residential zones.
2. To put the issue completely beyond doubt, it would be desirable for the Minister for Planning to amend the Victoria Planning Provisions by making it clear in clause 52.24[14] that a community care unit is exempt from the need for a permit for use and development under the relevant zone provisions.[15] However, whilst an amendment to the Victoria Planning Provisions would be desirable, it does not change my conclusion.
3. Clause 16.04-1 uses strong words about the need to keep the location of crisis accommodation and community care units confidential. Their establishment is "encouraged" but planning schemes need to "ensure" that their location is kept confidential. Planning schemes "must not" identify the site of a community care unit or a dwelling used for crisis accommodation as having that use. I therefore find, in order to give effect to the objective of clause 16.04, that the words "or develop" must, by necessary implication, be read into clause 52.24.

1. It follows from these reasons that I am prepared to make the declaration which the Department seeks. For the reasons stated, I believe that clause 52.24 must be interpreted as including, by necessary implication, development (buildings and works) within the exemption from the need for a permit.

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.

[2] Similar views were expressed in Cobden v Greater Bendigo CC [2003] VCAT 1395 and Bittern Residents Committee Inc v Mornington Peninsula SC [2007] VCAT 1080

[3] [2007] VCAT 603

[4] [2001] VCAT 1260

[5] [2001] VCAT 2220

[6] Sharkey v Golden Plains SC [2001] VCAT 2220 at [47]

[7] [2008] VCAT 963

[8] CIC Insurance Limited v Bankstown Football Club Ltd (1997) 187 CLR 384, 408.

[9] Roads Corporation v McCarthy [2004] VSC 369; (2004) 137 LGERA 433, 439-441.

[13] [2003] VCAT 1691 at [20] - [24]. See also Odyssey House Victoria v Benalla Rural CC [2003] VCAT 15 at [44] and Armato v Hepburn SC [2007] VCAT 603

[14] and probably clause 52.22, although not necessarily clause 52.23

[15] It might be argued that restricting the exemption to zone provisions only, would mean that if an overlay also applied, a permit should be required for development under the overlay. Overlays have their own specific objectives and community care units should respond to them in the same way as any other development. In terms of keeping their location confidential, it is unlikely to present a practical problem because I was told the Department does not usually locate community care units in areas with overlays.