1. The Applicant is the owner of land situated at 2 Beaconsfield Avenue, Frankston. It is zoned "Residential 2" under The Frankston Planning Scheme ("the Scheme"). The improvements on the land consist of a dwelling house which has recently been extended at the rear in accordance with plans that were tendered at the hearing. It now has nine bedrooms, three bathrooms and four toilets and is intended to be used to accommodate students from the Frankston Campus of Monash University which is located nearby.

* there will be a coin operated washing machine and dryer in the laundry available for use by all occupants;

* the communal areas of the building are to be cleaned fortnightly and maintained by the owner; and

* tenants will enter into tenancy agreements under the Residential Tenancies Act 1997 for six or twelve month periods, conferring exclusive occupancy to each tenant of his or her room, plus the shared use of the common areas and facilities of the house with the other residents.

Assistance is to be sought from the student housing office at the university to obtain tenants but the Applicant denies the office will tenant the property on its behalf.

3. Whilst the extension was under construction the council wrote to the Applicant contending that, if it were to be occupied for the purpose of student accommodation, its use would constitute a residential building and require a town planning permit. The Applicant contended and still contends that the proposed use is "shared housing" and that, under the Scheme, no permit is required.

4. On 10 October 2000 this application was made to the Tribunal seeking a declaration pursuant to s149A of the Planning and Environment Act 1987, in the following terms:

"That premises used to accommodate university students who occupy individual bedrooms but otherwise share laundry, kitchen and living facilities within a building which is a self contained residence is not excluded from the operation of Clause 52.23 of the Frankston Planning Scheme by reason of the residents being tertiary students residing in the premises on a rent paying basis."

5. The application was served upon the City of Frankston, which is the Responsible Authority, and Mr and Mrs Parker, who are adjoining land owners. Both gave notice to the Tribunal of their intention to contest the application. The matter came before me for hearing on 24 January 2001. Mr Rantino represented the City of Frankston, Mr Pitt represented the Applicant and Mr Parker appeared on behalf of himself and his wife.

6. Mr Pitt began by joining issue with the Council's contention that the proposed use is "Accommodation" under the Scheme. "Accommodation" is a Section 2 use under the Residential 2 zone of the Scheme and therefore requires a planning permit, except in the case of a "dwelling", which does not require a permit. Mr Pitt argued that the proposed use amounted to "Shared Accommodation" within the meaning of Clause 52.23 of the Scheme, the text of which appears below.

7. He referred to the statements of underlying principle to be found in Clause 13 of the State Planning Policy Framework, which forms part of the Scheme. Those state that Planning is to recognise such things as the need for, and as far as practicable, contribute towards, inter alia, diversity of choice and also recognise social needs by providing for a range of affordable housing. He also referred to Clause 16, which provides that it is an objective of residential development for single dwellings to encourage opportunities for increased residential densities to help consolidate urban areas. He also referred to Clause 16.04 of the State Planning Policy Framework, which is in the following terms:

"16.04 Crisis and Accommodation 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 ten 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."

8. 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"..

9. He then referred to Clause 32.02-1 of the Scheme, which sets out the table of uses for a Residential 2 zone and pointed out that for a dwelling (other than bed and breakfast) no permit is required whilst "accommodation other than dependent person's unit and dwelling" is a use that does require a permit.

10. He then referred to Clause 52.22 of the scheme which is in the following terms:

A permit is not required to use a building, including outbuildings normal to a dwelling, to house people and any attendants 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. * Contains self contained accommodation. * Does not have more than 10 habitable rooms.

A permit is not required to use a building, including outbuildings normal to a dwelling, to house a person, people and any attendants or two 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. * Provides self contained accommodation. * Does not have more than 10 habitable rooms. 11. It is the applicability of Clause 52.23 that this case is about. However, Mr Pitt went on to refer to Clause 74, which defines "accommodation", "Dwelling" and "Residential building", so that, if I should conclude that Clause 52.23 did not apply, the use would nonetheless be a "dwelling" which, for a Residential 2 zoning, does not require a permit under the Scheme. The history of these provisions 12. Both Mr Pitt and Mr Rantino referred at length to the history of the foregoing provisions, particularly in regard to the evolution of the definition of the word "dwelling". 13. Mr Pitt said that, before Amendment No. 372 to the Melbourne Metropolitan Planning Scheme, which was gazetted on 30 July 1986, "dwelling" was defined to mean:

"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"; (my emphasis).

14. He said that there was some concern that this definition of "dwelling" might have discriminated against households that were not a single family and so by Amendment No. 372 the following definition was substituted:"

"Dwelling" rneans any building or portion of a building including outbuildings which are normal to the enjoyment of a dwelling, which is used or intended, adapted or 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."

and, for the definition of "Residential building", the following was substituted:

""Residential building" means any building or portion of a building containing more than 10 habitable rooms which is used or intended, adapted or designed to be used either temporarily or permanently for the purpose of human habitation by two or more persons who do not comprise a family but does not include such accommodation where it forms part of an educational establishment, a hospital, an hotel, an institutional home, a motel, a reformatory institution, a retired persons' residential community or a tourist establishment."

15. Mr Pitt quoted the following passages from the Panel report in respect of Amendment 372:

"At the time of the introduction of the 'Women's Refuge" amendment, Cabinet recommended that a comprehensive review of planning, building and health regulations impinging on shared housing be carried out. A working party was established with representation from State Government agencies and Local Government. Copies of the deliberations of the working party which undertook this review were distributed to Councils and community groups for comment in July 1985. The concept of de-regulating shared housing was widely supported.

The working party, on the basis of anti-discrimination principles, recommended that the definition of "Dwelling" contained in the Melbourne Metropolitan Planning Scheme be amended to include reference to a household of unrelated people.

It was also felt that it was desirable that the amendment

- not identify any particular government program or funding arrangement

- not specify client group characteristics, in particular disabilities or disadvantaged circumstances

- relate the number of persons in the shared household to dwelling size

The proposed amendment was designed to meet the recommendations of the working party."

"In deciding to delete the definition of "Apartment House" and change the definition of "Residential Building" the Responsible Authority made a conscious decision to abandon any distinction between the provision of accommodation on a commercial or non commercial basis where this was on a small scale. (i.e. limited to ten habitable rooms).

The basis of this decision was that planning authorities should not be examining to what degree the occupants of a dwelling interacted in their daily lives or how they shared facilities or whether they had locks on the bedroom doors or paid a resident landlord board or how the financial running of the dwelling was arranged. The primary objective was to define the use by its external characteristics and the face it presents to the community at large rather than by its internal personal, living or financial arrangements.

The Panel supports this approach. There was no evidence presented to it that small scale commercial accommodation establishments in general were any different to non commercial establishments in respect of the problems which they generated." (my emphasis)

16. Mr Pitt said that those definitions of "dwelling" and "residential building" were included in the Regional Section of the Metropolitan Region Planning Scheme under the Act. He said further that, under that Scheme, "detached house" was defined as "a building unattached to any other building and occupied or intended or designed for occupation as a single dwelling" (my emphasis) with certain exclusions, and that, as "detached house" was an as of right use in the Residential zones:

"...the effect was that a detached house that was occupied by two or more persons and that did not comprise a single family where such building or portion thereof did not comprise more than 10 habitable rooms was an as of right use in the Residential zones".

I think that consequence would have followed, providing the house was occupied as a single dwelling.

17. He said the next Planning Scheme was the Metropolitan Planning Scheme which, in the Regional Section, defined:

- "Detached house" as "a dwelling not attached to or touching another building. It does not include a movable dwelling unit".

- "Dwelling" as "a building that provides self-contained living accommodation permanently or temporarily for one of the following:

* at least two people who are not a family and the accommodation does not have more than 10 habitable rooms.

It includes outbuildings normal to a dwelling" (my emphasis)

"Residential building" as "A building with more than 10 habitable rooms that provides temporary or permanent accommodation for at least 2 people who are not a family. It does not include a tourist hostel."

He said that this Planning Scheme commenced on 16 February 1988 and continued until the coming into operation of the new format Planning Schemes.

18. He said that Clause 3.4 of the State Section of the Metropolitan Planning Schemes which came into operation on 16 February 1988 maintained the State policy that Planning Authorities not prevent a dwelling of up to 10 habitable rooms in a residential area from being used for shared housing or crisis accommodation. As stated above, this is continued in the State Policy that applies to the present scheme but Mr Pitt wants to apply this to a situation that does not concern the matters to which that policy expressly refers. He added that, pursuant to Clause 3-4.2, the State Policy included as a major factor influencing policy, the need for all groups of people to have access to adequate and appropriate housing and that housing at times of personal emergency or crisis and housing for people with intellectual disabilities were separate influences. I accept they are stated separately, but they relate back to the policy statement in 3-4.1, which is:

* The location of any crisis accommodation be confidential.

* Responsible authorities and planning authorities do not prevent a dwelling of up to 10 habitable rooms in a residential area from being used for shared housing or crisis accommodation."

"Residential development - Shared housing and crisis accommodation

This policy applies to land used for shared housing and crisis accommodation."

19. He pointed out that Clauses 8.1 and 8.2 of the State Policy of the former scheme made provision for crisis accommodation and shared housing in substantially identical terms to Clauses 52.22 and Clause 52.23 of the present Scheme. However, Clause 8 set out the "Use Controls", which were intended to implement the polices to be found in the various parts of Clause 3. In interpreting what these meant, I think those policies should be borne in mind.

20. Mr Rantino, for the Responsible Authority, said that clauses 3-4, 8-1 and 8-2 of the State Section applicable to the former planning scheme were introduced by Amendment SI, which was approved on 4 May 1989 and gazetted 10 May,1989. He produced two documents that were published by the then Ministry for Planning and Environment at the time of the introduction of the new clauses to explain their intent. The news release that he produced quotes the then Minister, Mr Roper, as saying:

"The new measures will ensure that prejudice does not stop disadvantaged people finding houses and taking their place in the community."

The rest of the document is couched in terms suggestive of an intention to benefit disadvantaged people by means of the amendment.

21. Mr Pitt pointed out that Clauses 52.22 and 52.23 make separate provision in relation to accommodation for persons at times of personal emergency or crisis (Clause 52.22) and Shared Housing (Clause 52.23). He said this was consistent with the use of the disjunctive "or" in Clause 16.04-2 in the State Planning Policy. That is true, but if he is suggesting that "Shared Housing" has a meaning quite independent of any other words in 16.04-2 that would be inconsistent with the heading of 16.04-2 (numbered 16.04) which is:

"Crisis accommodation and community care units"

22. Mr Pitt submitted that the language employed in Clause 52.23 does not include any technical language and should be construed having regard to the ordinary English meaning of the words used. He relied upon the comments of Marks J. in the case of Franceschini -v.- MMBW (1980) 1 PABR 276, a case concerned with the definition the term `Institution". In that case, his Honour said (at p. 280):

"In truth, the `definition' is far from self-fulfilling: it will usually, if not always, be necessary to exercise some judgment conditioned by matters external to its terms in order to determine what is comprehended within it and what is not. Those who are called upon to apply it will of course require to understand what it means and for that purpose will need to Interpret and construe it. The construction of a document involves two elements, "... first, the meaning of the words and. secondly, their legal effect. or the effect which is to be given to them": Changenay v. Brazilian Submarine Telegraph Co. Ltd. (1980) 1 Q. B. 79, 85 per Lindley L.J.

A determination of the meaning to be given to ordinary non-technical English words (which, in my opinion, those In the definition of "Institutional home" in the Ordinance are) involves a matter of fact and not a question of law."

His honour then referred with approval to the decision of the House of Lords in Cozens -v.- Brutus [1972] UKHL 6; [1973] A.C. 854 where Lord Reid said (at p. 861):

"The meaning of an ordinary word of the English language is not a question of law. The proper construction of a statute is a question of law. If the context shows that a word is used in an unusual sense the court will determine in other words what that unusual sense is. But here there is in my opinion no question of the word 'Insulting' being used in any unusual sense. It appears to me, for reasons which I shall give later, to be intended to have its ordinary meaning. It is for the tribunal which decides the case to consider, not as law but as fact, whether in the whole circumstances the words of the statute do or do not as a matter of ordinary usage of the English language cover or apply to the facts which have been proved."

23. Additional to these comments, Mr Rantino referred me to Clause 71 of the Scheme, which provides as follows:

A term in this planning scheme has its ordinary meaning unless that term is defined:

* In the Planning and Environment Act 1987 or the Interpretation of Legislation Act 1984, in which case the term has the meaning given to it in those Acts unless it is defined differently in this scheme."

24. In this case, the term "Shared Housing" is not defined anywhere in the Scheme or the Acts referred to. Mr Pitt's submissions related to the other words used in the Clause. He submitted that the ordinary English meaning of "house" in this context is "to occupy as a place of residence". I do not agree. In the context in which it appears, it is a verb, the object of which would be the person or persons to be housed. He submitted that the use of the word "including" in respect of persons with intellectual disabilities means that the use is not limited to that category of residents and the language does not create a number of categories to establish a genus. I think that is right. He also submitted that housing of persons at times of personal emergency or crisis is separately dealt with in Clause 52.22 and there is no basis for contending that Clause 52.23 also applies to crisis accommodation. Again, I think that is right but it leaves open what Clause 52.23 does apply to. The underlying policy in clause 16.04 would suggest that it was intended to apply to Community Care Units.

"The distinguishing criterion as to whether one needs a permit or not is not whether the persons who are housed pay rent, are students or any other social grouping but simply whether the building meets the three specified criteria irrespective of whether it would be categorised in the ordinary English meaning of the expression "as a residential building"."

Certainly, if the wording of the Clause applies to the proposed use, a permit is not required irrespective of other factors, but in considering whether it meets the criteria the proposed use must be carefully examined and the policy that the Clause was intended to implement should also be considered to assist in resolving any ambiguity.

26. Mr Rantino submitted that the proposed use is not what the "shared housing" provision of the Scheme contemplates. He said that the needs of university students bore no relation to the needs of the class of people contemplated by the clause and in support, pointed to the history stated above. I agree, but whatever the history, I must now determine what it means in its present form. He also said that the accommodation offered to each student was not "self-contained" as required by the clause, in that each of the rooms is not provided with bathroom and cooking facilities. I shall return to this argument.

27. Finally, he said there are more than 10 habitable rooms in the building. In this regard, the Applicant counts the kitchen, lounge and dining area as a single room. "Habitable room" is not defined in the Scheme or either of the Acts referred to above and so by Clause 71, the ordinary meaning of the term is to be applied.

28. Mr Rantino submitted that I should be assisted by the definition in the Good Design Guide for Medium-Density Housing, where "Habitable room" is defined as:

"a room used for normal domestic activities, including a bedroom, living room, lounge room, music room, television room, kitchen, dining room, sewing room, study, playroom, family room and sunroom, but excluding a bathroom, laundry, water closet, pantry, walk-in wardrobe, corridor, hallway, lobby, photographic darkroom, clothes-drying room, and other spaces of a specialised nature occupied neither frequently not for extended periods."

29. He also referred to the Tribunal's decision in the case of Nicholas Day Architects -v.- Stonnington City Council and A & L Adams & Ors (Application No. 1997/90715) as authority that the term "habitable room" includes a kitchen, but Mr Pitt did not dispute that it does.

30. The Plans tendered show the kitchen to be largely enclosed on three sides but open to an area marked "MEALS" which in turn is open to a larger area marked "LIVING". The "Living" and "Meals" areas could, I think, fairly be regarded as comprising together one large "L" shaped room into which the front door opens directly and from which there are two entrances to a passageway leading to other parts of the house. However, I find it hard to accept that the kitchen can sensibly be regarded as part of this room. It is separated from it, except for one wall, and has a fundamentally different purpose, namely, the storage and preparation of food and the storage and cleaning of cooking utensils. If the kitchen is a room, the house comprises 11 habitable rooms, not 10 and on that basis alone, Clause 52.23 would not apply. As will appear, I do not have to finally decide this point. In any event, to simply reject the application on this basis would be of little assistance to the parties, since Mr Pitt suggested that if I were of this view, the Applicant might reduce the number of rooms to 10. It is therefore desirable that I decide what the situation would be in regard to this proposal if the house had 10 habitable rooms.

31. In the absence of any definition of "shared housing", the term must be intended to apply to the circumstances described in the Clause and I should give those words their normal meaning.

32. The Clause says that a permit is not required to use a building for the purpose described. It does not refer to the use of portion of a building, as Amendment 372 did, but I think the use of part of a building must inevitably be a use of that building.

33. The use must be "...to house a person, people and any dependants two or more people (including people with intellectual disabilities)..". The use of the word "house" as a verb would be appropriate to describe the activities of a government or charity providing people with housing but it is an odd verb to apply to a landlord renting accommodation on a commercial basis.

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.

35. I should add that if Clause 52.23 did apply to this proposed arrangement, there would be no reason why it would not also apply to a boarding house or a hostel, yet those uses require a permit under the Scheme. I do not accept Mr Pitt's submission that Clause 52.23 is a specific provision and in the event of conflict is to be preferred to a more general provision. Rather, I think Clause 52.23 is a very general provision indeed.

36. If the proposed use of this building is a dwelling, no permit is required.

37. "Dwelling" is defined to mean: "A building used as a self contained residence, which must include:

It includes outbuildings and works normal to a dwelling.

38. "Residential Building" is defined as meaning land used to accommodate persons, but does not include a camping and caravan park, corrective institution, dependent persons unit, dwelling, group accommodation, host farm or residential village. The definition states that it includes backpackers lodge, boarding house, hostel, nurses' home, nursing home, residential college and residential hotel. The only one of these inclusions that is separately defined is "Residential Hotel", which is defined as being "land used to provide accommodation in serviced rooms for persons away from their normal place of residence." Since it is proposed that the occupants will be offered 6 and 12 month tenancies of their rooms the house would in my view be their normal place of residence during the period of the tenancy. It is therefore not a Residential hotel.

39. The history of these provisions is of limited assistance. A reading of the report of the Panel referred to above shows that it considered that any distinction between the provision of accommodation on a commercial or non-commercial basis should be abandoned where this was on a small scale, that is, limited to ten habitable rooms. The thrust of the panel's approach was to ignore the internal arrangements existing between the occupants of the premises and instead focus upon the manner in which the intensity and use of the property may impinge externally on the surrounding area. Ten habitable rooms was chosen as:

"a reasonable cut off point for a prima facie distinction between ordinary residential use, which should not require a permit in residential zones, and extraordinary residential use which should require a permit".

40. The panel recommended that the definition of "dwelling" be amended to include reference to a household of unrelated people, and continued:

"It was also felt that it was desirable that the amendment

- not identify any particular government program or funding arrangement

- not specify client group characteristics, in particular disabilities or disadvantaged circumstances

- relate the number of person in a shared household to dwelling size"

"In deciding to delete the definition of "Apartment House" and change the definition of "Residential Building" the Responsible Authority made a conscious decision to abandon any distinction between the provision of accommodation on a commercial or non commercial basis where this was on a small scale. (i.e. limited to ten habitable rooms).

The basis of this decision was that planning authorities should not be examining to what degree the occupants of a dwelling interacted in their daily lives or how they shared facilities or whether they had locks on the bedroom doors or paid a resident landlord board or how the financial running of the dwelling was arranged. The primary objective was to define the use by its external characteristics and the face it presents to the community at large rather than by its internal personal, living or financial arrangements.

41. The "external characteristics" of this development and "the face that it presents to the community at large" are not affected by the fact that the inmates have exclusive tenancy of their bedrooms and only share the facilities. To an outsider, the house would appear no different to a house occupied by a number of students who owned the house or jointly leased it from a landlord. The Applicant would argue that to look into these matters is to examine "...to what degree the occupants of a dwelling interacted in their daily lives or how they shared facilities or whether they had locks on their bedroom doors....", things that the Panel Report said Planning Authorities should not be examining.

42. However I have to interpret the Scheme as it is now. There is no mention of 10 habitable rooms in the current definitions of "Residential building" or "Dwelling". To be a "dwelling" under the Scheme, the building must be used as a self contained residence with the facilities described above. The problem with regarding this building as a single residence is that it has been divided into areas of exclusive occupancy which are intended to be separately leased by the Applicant to different people. If a suburban house were divided into two or more units it could not sensibly be suggested that the house still comprised only one residence. Each unit would be regarded as a separate residence. Similarly, I think that each of these areas constitutes a separate residence, comprising the area of exclusive occupancy and the shared facilities. The proposed use in this case is therefore nine residences, not one and since none of them is self contained with the facilities described, none of them comes within the definition of "Dwelling".

43. On the other hand, if a number of students were to rent or buy a house and share it, the building would amount to a single dwelling provided they occupied the whole house between them. This is a common shared housing situation and the process of sharing involves the division of the bedrooms between them, just as members of any household will allocate bedrooms between themselves. What distinguishes this situation is that the proposed occupants will not share the whole house. All they will share is the common facilities. The rest of the house consists of areas of exclusive occupation leased to them individually by the Applicant. They do not jointly occupy the whole house. If one bedroom is vacant, they are not entitled to use or even enter it. Such an arrangement cannot be regarded as a single residence.

44. Since Clause 52.23 does not apply, and since the proposed use is not a dwelling within the meaning of the Scheme, a permit is required.

45. For these reasons, I cannot make the declaration sought nor any other declaration that will assist the Applicant and the Application will be dismissed.