Application under Section 114 of the Planning and Environment Act 1987.

Clause 52.22 - no permit is required to use a building normal to a dwelling for crisis accommodation;

Clause 52.23 - no permit required to use a building for shared housing;

Provided - it is in an area zoned for housing, provides self contained accommodation and does not have more than 10 habitable rooms

The subject site is regular shaped with a frontage of 15.24 metres to Wedd Street and depth of 40.26 metres. The subject site has an overall area of 613.56 square metres, is generally flat and is not affected by any easements or covenants. The subject site is being developed in accordance with Building Permit 20140127/0 issued 3 March 2014 and plans amended 1 December 2014. The building contains nine(9) single bedrooms. Each of the rooms has bench, sink, ancillary bathroom facilities and space for a refrigerator. One (1) room provides facilities for a resident with a disability. Communal laundry and kitchen facilities are provided in a separate room with communal outdoor space to the north of these communal facilities. Each room is provided with private open space to provide residents with privacy. [1]

Armato v Hepburn SC [2007] VCAT 603; Department of Human Services v Maribyrnong CC [2008] VCAT 1746; PosCorp Pty Ltd v Frankston CC [2011] VCAT 1140; Bay Concepts Pty Ltd v Frankston CC [2014] VCAT 1166 (19 September 2014); O'Connor Assets Pty Ltd v Greater Geelong CC [2014] VCAT 69 (28 January 2014)

1. The Kingston City Council commenced this enforcement application following a complaint regarding building works being undertaken at 13 Wedd Street. The Council maintains the building being developed is a residential building and contravenes clauses 32.08-4 and 32.08-6 of the Kingston Planning Scheme, as a planning permit is required for the buildings and works associated with the development and there is no planning permit.
2. The respondent submits the development is properly characterised as a dwelling, not a residential building. The respondent submits the land is intended to be used for crises or shared accommodation which would comply with the provisions of clauses 52.22 and 52.23 of the Kingston Planning Scheme. Pursuant to these clauses no planning permit is required for the use of the land.
3. Ms Harvey, who resides at 15 Wedd Street represents a number of residents in Wedd Street and submits they were not consulted about the use of the dwelling being constructed at 13 Wedd Street. Their concerns relate to the design of the building, parking, noise, safety and what they suggest is the respondent avoiding the planning process.
4. The issues to be addressed by the Tribunal can be identified as:
   • What is the characterisation of the building?
   • Is a planning permit required for the use of the building?
   • Is there a contravention of the Kingston Planning Scheme?

What is the characterisation of the building?

1. The Council referred to the approved building plans which show three separate single storey buildings linked by covered walkways. The building located at the rear of the site contains four bedrooms and the building running the length of the site contains five bedrooms. A separate building on the western boundary contains a laundry and kitchen. Each of the nine bedrooms are single. They contain a separate bathroom and an area at the entry to each unit which contains a bar/bench and kitchen sink. A sliding door separates this area with the bedroom. Each room has an external doorway to a small courtyard area. One bedroom is slightly larger to accommodate a resident with a disability. Two car spaces are provided at the front of the site with one allocated to the resident with a disability.
2. The following definitions are contained in Clause 74 of the Kingston Planning Scheme:

Dwelling: a building used as a self contained residence which must include:

Accommodation: land used to accommodate persons.

Residential Building: Land used to accommodate persons, but does not include camping and caravan park, corrective institution, dependent person unit, dwelling, group accommodation, host farm, residential village or retirement village.

Includes a Backpackers' lodge, Boarding house, Hostel, Nurses' home, Residential aged care facility, Residential college, Residential hotel and Accommodation

1. Clause 75 of the Kingston Planning Scheme contains nesting diagrams for various land use groups. 'Dwelling' and 'Residential building' are listed under the Accommodation Group. Dwelling includes bed and breakfast and caretaker's house. Residential building includes backpacker's lodge, boarding house, hostel, Nurses' home, residential aged care facility which includes a nursing home, residential college and residential hotel which includes motel.
2. The Council referred to the description of the design as 'various structural elements for proposed rooming house ...' and submitted 'rooming house and boarding house are terms which are used interchangeably in the context of accommodation and have the same meaning. A room or rooms hired for residence at an agreed price in another's house with or without meals. (Macquarie Dictionary)'. The original description on the building plans refers to the development as a boarding house. This description was amended on the plans following the Council's letter to the Building Surveyor[2] to 'shared accommodation'.
3. Clause 52.22 of the Kingston Planning Scheme provides:

A permit is not required to use a building, including outbuildings normal to a dwelling, to house people and any dependants 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.

1. Clause 52.23 of the Kingston Planning Scheme provides:

A permit is not required to use a building, including outbuildings normal to a dwelling, to house a person, people and any dependants 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.

Any room of a dwelling or residential building other than a bathroom, laundry, toilet, pantry, walk-in wardrobe, corridor, stair, lobby, photographic darkroom, clothes drying room and other space of a specialised nature occupied neither frequently nor for extended periods.

1. The Council submits the development is not a dwelling as asserted by the respondent. Under the provisions of Clause 32.08 a permit is not required for use of the land for a dwelling. A permit may be required for development if there is an existing dwelling on a lot, if two or more dwellings are to be constructed on a lot, if a dwelling is to be extended when there are two or more dwellings on the lot, or a dwelling is to be constructed or extended on common property.
2. Under the provisions of Clause 32.08 a permit is required for use of the land for accommodation (other than Dependent person's unit, Dwelling and Residential aged care facility). As this is a section 2 use a permit is also required to construct a building or construct or carry out works for a use in Section 2 of Clause 32.08-1. Under Clause 32.08-4 a permit is also required to construct or extend a residential building.
3. The purpose for which the land is said to be used by the respondent is for crisis or shared accommodation. The Building Permit issued on 3 March 2014 is for development of the subject site as a dwelling Class 1b (being classified as a boarding house, rooming house or shared housing).

The common characteristic of all the land use terms included in 'residential building' is the accommodation is provided for multiple people individually. In other words, there are multiple units of accommodation available within the single building or complex of buildings comprising the particular type of residential building. However, in the case of a single house (or flat or apartment etc.) there is only one unit of accommodation even though more than one person may be accommodated. The important distinction is that the people accommodated would be accommodated as a group rather than individuals.[3]

1. The respondent submits the development on the land is a form of dwelling and that as the land, in this particular case, is to be used for the purpose of crisis or shared accommodation, there is no requirement under the provisions of clause 52.22 and 52.23, which relate to crises accommodation and shared accommodation for the need for a permit for use and development.
2. The respondent relies upon the decision of DP Gibson in Department of Human Services v Maribyrnong CC[4] where consideration was given to the tension between the absence of a requirement for a planning permit for buildings and works pursuant to clause 52.24 (Community Care Unit) and the requirements of the then Clause 32.01-6 (Residential 1 Zone). The Tribunal declared a permit is not required for the buildings and works if the proposed use of the land fell within Clause 52.24. Similarly, the respondent submitted this would apply equally in the circumstances of this matter to Clauses 52.22 or 52.23.
3. At paragraphs 6 and 7 the Tribunal stated:

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.

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.[5]

1. The Tribunal went on to conclude:
   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 that a community care unit is exempt from the need for a permit for use and development under the relevant zone provisions. 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.[6]

1. The respondent also referred to the decision in PosCorp Pty Ltd v Frankston CC[7] where it was proposed to increase the number of room in an existing building providing crisis accommodation to 12 rather than the 10 referred to in Clause 52.23. This fell outside the provisions of Clause 52.23 and accordingly the Tribunal determined there would be a change of use of the building to a 'residential building' which required a permit. The Tribunal stated at paragraph 15:

My findings on this matter are as follows. I was advised by council that the building on the land was lawfully constructed pursuant to a building permit and then used for crisis accommodation in compliance with Clause 52.22 of the Scheme. The change in the number of rooms now proposed results in the use becoming a residential building (as defined in the Scheme) and triggers the need for a permit. The applicant has appropriately sought a permit for the technical change of use that results from the increase in the number of habitable rooms and for a reduced provision of car parking.

1. Similarly in Bay Concepts Pty Ltd v Frankston CC[8] the Tribunal described the application:

A double storey building was constructed on the subject land in recent years for the purpose of Crisis Accommodation with 10 habitable rooms, taking the benefit of an exemption from planning permission. [clause 52.22 of the planning scheme]. The permit applicant now proposes to increase the number of rooms for residents via internal works, but proposes to maintain a generally similar character of tenants (who have low incomes, disability and/or are in crisis). This change in use for a Boarding House requires planning permission [under clause 32.08-1]

1. The building on the subject site could be described as either a dwelling or a residential building as in accordance with the definition in the planning scheme it is to be used to accommodated persons and it meets all the elements of a dwelling as defined under the planning scheme.
2. In my view it makes no difference as to whether the building is described as suggested by the respondent, as a dwelling, or it is described as suggested by the applicant, as a residential building. Provided it is to be used for crises or shared accommodation and it meets the conditions under clauses 52.22 and/or 52.23 no permit is required for the development.
3. I would agree with DP Gibson that '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 zone'[9].
4. No planning permit is required for the proposed development.

Is a planning permit required for the use of the building?

1. I consider that in the circumstances of this case no planning permit is required for the use of the building as the use proposed meets the conditions contained in clauses 52.22 and 52.23:
   • The subject land is located within the area zoned General Residential under the Kingston Planning Scheme. One of the zone purposes is 'to provide a diversity of housing types and moderate housing growth in locations offering good access to services and transport'.
   • Self contained accommodation is provided.
   • It consists of 9 habitable rooms as defined under the Kingston Planning Scheme. It therefore does not have more than 10 habitable rooms.
2. The respondent has made an application to the Council to register the premises as prescribed accommodation under the Public Health and Wellbeing Act 2008 where he has stated the type of accommodation is to be 'shared housing'.
3. Regulation 14 of the Public Health and Wellbeing Regulations 2009 exempts 'temporary crisis accommodation' from registration. The Council sought to draw a distinction between the way the respondent had described the accommodation and the classes of accommodation prescribed under this Act.
4. I take no issue that one piece of legislation may have a different definition than another. I expect that under Regulation 13 it is likely that the proposed 'shared accommodation would fall within the term 'residential accommodation'. This is however not a determinative factor in how the use proposed in considered under the Planning and Environment Act.
5. Ms Harvey has expressed concern that she and other residents in Wedd Street were not informed of the proposal and were not given the opportunity to raise their concerns.
6. The Planning Scheme at clause 16.02-2 provides in relation to crises accommodation and community care units as an objective 'to encourage the establishment of crisis accommodation and community care units in residential areas and to ensure that their location is kept confidential'. To achieve this 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.

 Identify the site of a community care unit or a dwelling used for crisis accommodation as having that use.

 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. It is unfortunate that there appears to be some form of stigma attached to crises or shared accommodation which is highlighted by the issues of concern raised by Ms Harvey and in some respects to the attitudes expressed by the Council. It may be for these reasons that the Planning Scheme exempts such uses from the requirement for a permit and provides distinct policy strategies as to how such accommodation is to be considered. As highlighted in O'Connor Assets Pty Ltd v Greater Geelong CC[10] 'such accommodation is appropriate in all residential areas'.
2. In Bay Concepts Pty Ltd v Frankston CC[11] the Tribunal made some general comments that are apt in these circumstances:

52. I recognise that there may be a relatively fine line between uses of land for crisis versus low cost accommodation and/or general boarding houses. While the 10 habitable room limit in clause 52.22 may, on one view, seem arbitrary, the fact that minor changes could be made and the building approved for a different purpose might occasion some consideration of the way the crisis accommodation exemption is formulated.

53. To the extent that the responsible authority requested that I give direction in this regard, I consider that this would more properly be a matter for the government if it elects to, after taking advice from a broad range of agencies, interested groups and individuals. The provision for crisis accommodation in the planning scheme is an issue that raises numerous challenges, and would need to be approached in an integrated way, rather than on a case-by-case basis.

1. In my view, and adopting the reasoning of DP Gibson, to give effect to the objective now contained in clause 16.02-2, clauses 52.22 and 52.23 must be interpreted to read that no permit is required for use and development. Although the residents have questioned why they were not informed. It is for that very reason that the planning scheme indicates that such uses should not be advertised, that is, to ensure persons who may be accommodated can live in the community without fear of reprisal or stigma being attached to them.

Is there a contravention of the Kingston Planning Scheme?

1. I am unable to conclude, as a result of my findings above, that there has been any contravention of the Kingston Planning Scheme.
2. The building takes on the characteristics of a dwelling and is described as a particular type of dwelling in the classification under the Building Permit as a class 1b dwelling (being classified as a boarding house, rooming house or shared housing).
3. The building meets the conditions under clauses 52.22 and 52.23. The Kingston Planning Scheme specifically exempts buildings to be used for crises or shared accommodation from the requirements of a planning permit. It therefore follows, on the reasoning above,` there is no requirement for a permit for development.

1. The application for an enforcement order is disallowed.

[1] Extract from Statement by Mr R Umbers, Town Planner

[3] Armato v Hepburn SC [2007] VCAT 603 at [16]

[4] [2008] VCAT 1746

[7] [2011] VCAT 1140

[8] [2014] VCAT 1166 (19 September 2014)

[10] [2014] VCAT 69 (28 January 2014)

[11] [2014] VCAT 1166 (19 September 2014)