The decision of the Tribunal is that in each of these applications an Enforcement Order be made in the following terms:

1. The use of the subject sites for the purpose of residential building cease other than in accordance with the permits issued at the direction of the Tribunal in applications for review P1972/2003 and P1973/2003 (or any other permit for residential building subsequently issued),.

2. The Applicant must serve on the Respondent orders in the form attached to this decision pursuant to Section 140 Victorian Civil and Administrative Tribunal Act 1998.

Mr Anthony Southall, QC with Mr David O'Brien, Barrister. Mr Southall and

Mr O'Brien called Mr Graham Harwood, Enforcement Officer, Mr Andrew Cook, Town Planner, and Mr Vincent O'Brien, Building Surveyor, as witnesses in support of their submissions.

Mr Nicholas Tweedie. Mr Tweedie called Mr Colin Bowden, Town Planner, as a witness in support of his submission.

1 These applications relate to two boarding houses in Ferntree Gully. The Responsible Authority contends that each of the boarding houses are a residential building, and that under the provisions of the Residential 1 zone, a permit is required for the use and development of land for the purpose of a residential building. There are no such permits. The Responsible Authority therefore seeks an enforcement order in each case seeking compliance with the planning scheme_._

2 The existing boarding houses, one located in Milton Street, and the other in The Avenue, are located on conventional suburban lots, using dwellings which have been extended and altered for the purpose and accommodate eight persons, each with their own bedroom and shared access to living spaces, kitchens, bathrooms, laundries etc.

3 These applications were heard together with applications for review P1972/2003 and P1973/2003, relating to permit application seeking retrospective permission for the establishment of residential buildings on the subject sites (the review applications). In each case the review applications relate to the decision of the Responsible Authority to issue a Notice of Refusal to Grant a Permit. In a separate decision to this decision, we have decided that the decisions of the Responsible Authority should be set aside, and permits granted.

4 At the hearing of the applications, the parties and the witnesses relied on both written and oral submissions. A large number of photographs, plans, cases from a variety of jurisdictions, and other documents were tendered to the Tribunal. The Tribunal inspected both subject premises.

5 There was no argument that in the absence of any other statutory consideration the subject boarding houses would be residential buildings as defined under the planning scheme. The Respondents did not pursue the argument that these boarding houses could be dwellings as defined under the planning scheme. The issue in contention between the parties is whether or not these boarding houses are shared housing for which no permit is required under the provisions of Clause 52.23 of the planning scheme.

6 Clauses 52-22 to 52-24 are related particular provisions in respect of specific accommodation types, crisis accommodation, shared housing, and community care units. All three clauses are set out below, it is clause 52.23 which is of particular importance in these enforcement order applications:

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.

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.

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.

7 In relation to the provisions of clause 52.23, the issues in these cases are whether or not the building provides self contained accommodation and whether or not the building does not have more than ten habitable rooms in accordance with the meaning of those expressions in that clause.

8 The issue of whether a boarding house or rooming house is "shared housing" turns largely on whether the decision of the Tribunal in Intervarsity Developments Pty Ltd v Frankston CC [2001] VCAT 833 should be followed. We are loath to make a decision which is inconsistent with previous decisions of the Tribunal, because it is important that local authorities and others interested in planning must be reasonably certain of the outcome without incurring the delay and expense necessary to bring proceedings here. We are confronted with two view on the shared housing issue; one supported by Intervarsity and also Moreland City Council v Stranaghan [2001] VCAT 1081 and the other by Cobden v Greater Bendigo City Council and Bendigo Community Health Services Inc [2003] VCAT 1395.

9 Mr Southall and Mr O'Brien relied on Intervarsity, in support of their argument that these boarding houses were not shared housing. The Intervarsity case related to student accommodation but in many respects the tenancy arrangement between the landlord in Intervarsity, was similar to that which exists in these boarding houses. It is the tenancy arrangement between the landlord and residents that is central to the Intervarsity decision in respect of the question of whether or not this type of accommodation can be shared housing. At paragraph 34 the Tribunal in Intervarsity concluded:

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.

10 Mr Tweedie argued that Intervarsity was incorrect when it decided that shared housing is now to be primarily defined by the type of tenancy agreement that exists between a landlord and tenant, and because it failed to have proper regard to the words of Clause 52.23 in that the clause requires that it be "the building" that "provides self contained accommodation". It was also argued that the inappropriate land use and development outcomes which would result from this interpretation and the history of the evolution of these particular planning scheme provisions support these contentions.

11 Aspects of the decision of the Tribunal in Intervarsity which appeared to have been of importance in the formulation of the conclusion reached in paragraph 34, include:

* The conclusion that the words shared housing where they appear in Clause 16-04 are intended to refer only to community care units (Intervarsity para 8).

* The observation that 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 (Intervarsity para 33);

* The concern that clause 52.23 is a very general provision indeed (Intervarsity para 35).

* The observation that notwithstanding the history of these planning scheme provisions, it is the provisions as they exist in the current planning scheme which must be interpreted.

It is useful to analyse the validity and/or implications of these considerations.

12 Clause 16-04 is part of the State Planning Policy Framework and states:

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.

13 In Moreland, Member Rickards dealt with a development very similar to those under consideration, but on a smaller scale. There was a dwelling with four bedrooms let out to four separate persons . Each person "had access to a shared kitchen, bathroom, laundry and toilet. Each bedroom contained a bar refrigerator and the laundry was equipped with a coin operated washing machine and clothes dryer. The entry door to each room included a lock normally associated with front or rear entry doors." Member Rickards cited Intervarsity with approval and followed it, although she added: "I consider the use of the buildings is that of a Residential Building which could given the description of the inhabitants, particularly their age, differing nationalities and means of carrying their belongings as well as the transitory nature of their stay would [sic] suggest that the premises were not dissimilar to a Backpackers lodge, which is included within the term Residential Building."

14 Acting Deputy President Byard in Cobden, considered the conclusions of the Intervarsity decision in respect of shared housing among other things. Mr Byard distinguished Intervarsity to some degree, pointing out that it was not primarily about a community care unit, whereas Cobden was. However he ultimately disagreed with the conclusions of the Tribunal in the Intervarsity case in relation to shared housing and Clause 16-04, Cobden para 39, ie:-

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.

15 In the Macquarie Dictionary one of the many alternative meanings for house, as a verb, is to give shelter to; harbour; lodge. While it is true that the verb to house could be applied to the activities of a government, or a charitable institution, the third of the alternatives contained in the Macquarie definition above, to lodge, is in fact consistent with a landlord renting accommodation on a commercial basis, therefore it is considered that the use of the verb to house does not imply a more restricted meaning to the concept of shared housing under clause 52.23.

16 It is true that if the shared housing provision is interpreted without a close examination of the relationship between residents, or residents and a landlord, then it is a very general provision indeed. However, an examination of the history of the introduction of these planning scheme provisions makes it evident that their introduction was based on an intention to in effect deregulate the specific residential uses defined by clauses 52.22 to 52.24 subject only to limitations primarily requiring the premises to be self contained and of a domestic scale. Therefore while one might reasonably be concerned about the range of uses which might be established within a residential area under these clauses, without the need for planning permission, this was the general intention of the amendments introduced during the late 1980's and early 1990's. Domestic scale in the case of crisis accommodation, and shared housing, is ensured by limiting these uses to buildings of not more than ten habitable rooms.

17 It can be said that the Tribunal in Intervarsity was required to interpret and apply the current planning scheme provisions. However in a context where a provision is unclear or ambiguous it can be helpful to consider the intended policy and purpose of the provisions.

18 Clauses 52.22 and 52.23 of the planning scheme in effect define crisis accommodation and shared housing. The provisions are very similar. If Intervarsity is correct, then the lawfulness of crisis accommodation would similarly depend upon some form of shared tenancy existing between the occupants of the crisis accommodation. It is most unlikely that this close examination of the relationship between those in crisis and their carers was intended by the planning scheme.

19 In Intervarsity the traditional student house was used as an example of the shared tenancy which was regarded as being required to satisfy the requirement that the building provide self contained accommodation. The difficulty with this is that between the traditional student house, and the commercially operated boarding house, there are many many different possible relationships between residents and between residents and land owner. An example might be a house owner who either for social or economic reasons desires to let out his or her spare bedroom and advertises for another person to share the house. It is unlikely that the home owner, and the lodger in that case could be said to have been given an undivided part of the whole house. Indeed in such a case the rules in relation to the sharing of the house could be quite complex and informal. It is likely that the lodger would have exclusive use of the spare bedroom, but may be denied access to other rooms. However, if Intervarsity is correct, a building used in this way could not be regarded as either shared housing, or as a dwelling.

20 The history of the approach to crisis accommodation, shared housing, and community care units in planning schemes is a response to the movement to establish "women's refuges" the de-institutionalisation of large scale residential accommodation for particular groups such as the intellectually disabled, and ultimately a reconsideration of shared housing generally. In the early 1980's the government of the day established a working party to review the planning, building and health regulation of shared housing. The working party report Deregulation of Shared Housing: A Discussion Paper, was released in July 1985. Amendment 372 of the Melbourne Metropolitan Planning Scheme, was the mechanism to implement the recommendations of the working party in Melbourne. The following extracts from the panel report in relation to Amendment 372 assist in the understanding of the planning purpose of the amendment, these extracts were also set out in the Intervarsity case:

"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."

The outcome of AM 372 was to delete the land use definitions for Apartment House, Community Residential Unit, and Women's Refuge, and modify the definitions for Residential Building and Dwelling to accommodate all forms of shared housing above and below 10 habitable rooms, but only in the then Melbourne Metropolitan Planning Scheme.

21 The adoption of the Planning And Environment Act 1987, provided for the reformulation of planning schemes with one for every municipality each to include state, regional and local sections. For the fist time the state had a mechanism to introduce state wide, overarching, planning provisions.

22 Amendment S1, May 1989, introduced provisions relating to Crisis Accommodation and Shared Housing, into the state section of all schemes. Amendment S38, January 1995, similarly introduced provisions in relation to Community Care Units. The later change appears to have been made to allow for a particular form of accommodation larger than that which would satisfy the existing Shared Housing provisions.

23 From 1998 planning schemes across the state were replaced with schemes based on the Victorian Planning Provisions. The VPP based provisions are the current provisions, and Clauses 52.22, 52.23 & 52.24, are an almost direct translation of the provisions introduced by Amendments S1 & S38.

24 The provisions in the planning scheme relating to crisis accommodation, shared housing and community care units are different to those which were implemented as a consequence of Amendment 372. Nevertheless, there is no reason to suppose that the subsequent changes were made as a consequence of a change in policy, rather the changes were made to give effect to the policy evident at the time of Amendment 372 on a statewide basis, and to translate the provisions into new format planning scheme. While it is also true that the redrafting of provisions such as these can introduce unintended change, the question is whether or not there is an unintended change.

25 The Tribunal recognises the difficulty of interpreting clause 52.23. "Provides self-contained accommodation" is capable of meaning "for each person" or "for the building as a whole". A difficulty of the former interpretation is, as said by Senior Member Byard in Cobden, that this proposition "would involve there being a series of self-contained flats or dwellings, rather than an accommodation 'unit'" A difficulty of the latter is that it is hard to imagine a domestic building of ten habitable rooms or less which fails the test of shared housing.

26 Ultimately we are satisfied that the correct approach is that the building, as a whole, must be self contained. Clause 52.23 is not unambiguous, but there is nothing in the clause which necessarily requires its interpretation based on an analysis of the tenancy arrangements of the occupants. The Tribunal in Cobden v Greater Bendigo CC [2003] VCAT 1395, dealt with the issue of self contained accommodation in the context of a community care unit, nevertheless the decision of the Tribunal in the Cobden case supports our conclusion in this matter.

27 It is considered that both of the boarding houses the subject of these enforcement order applications are, as a whole, self contained, and therefore satisfy that aspect of the requirements set out in clause 52.23.

28 The third requirement under clause 52.23 in relation to shared housing is the limitation that there be no more than ten habitable rooms. Mr Tweedie, observed that in the particular circumstances of these buildings if there was a problem in relation to the number of habitable rooms the interior layout of one or both of the buildings could have been modified to ensure that it/they would comply. We have some reservations about the approach taken by Mr Vincent O'Brien in respect to the assessment of the number of habitable rooms, and therefore will consider the definition of habitable room generally before reaching a conclusion in relation to the number of habitable rooms in the subject buildings.

29 The current definition of habitable room in the Knox Planning Scheme is:

Habitable room 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.

30 The relevant definition of room in the Macquarie Dictionary is a portion of space within a building or other structure, separated by walls or partitions from other parts. Our general observations in this regard are:

* There is no warrant in the planning scheme to regard a room being used for more than one purpose as being more than a single room;

* A partition for the purposes of determining whether or not a space is divided into multiple rooms, would need to be a substantial object similar to a wall, and would not include a kitchen bench;

* There can be openings between rooms, which are not capable of being closed, but which do nevertheless, in part at least constitute a division between separate rooms for example an archway;

* A kitchen with a kitchen table, or a bench with stools, would ordinarily be regarded as a habitable room, but a small kitchenette not capable of being occupied other than while in the process of preparing a meal, is probably more like a bathroom than a living space although there is some doubt that it would satisfy the general exclusion, other space of a specialised nature occupied neither frequently nor for extended periods.

31 Plans were tabled on behalf of the responsible authority set out its assessment of the number of habitable rooms present in each of the subject buildings. In relation to 10 Milton Street we are of the view that rooms 9 & 10 set out on the plans are a single room.. In relation 54 The Avenue we are of the view that rooms 9 & 10 and rooms 12 & 11set out on the plans are single rooms. Therefore it is our conclusion that without further modification there are 11 habitable rooms in both these building.

32 It follows from the conclusions set out above that the building at 10 Milton Street and the building at 54 The Avenue are not being used for the purpose of shared accommodation in accordance with the provisions of clause 52.23 of the planning scheme ordinance, because both building contain more than 10 habitable rooms. We will therefore order that the use of the subject sites for the purpose of residential building cease other than in accordance with the permits issued at the direction of the Tribunal in applications for review P1972/2003 and P1973/2003 (or any other permit for residential building subsequently issued).

Planning And Environment Act 1987 Victorian Civil And Administrative Tribunal Act 1998

3. The use of 10 Milton Street, Ferntree Gully, Ferntree Gully for the purpose of a residential building must cease other than in accordance with the permit issued at the direction of the Tribunal in application for review P1972/2003 (or any other permit for residential building subsequently issued),.

4. The Applicant must serve a copy of this order on the Respondent pursuant to Section 140 Victorian Civil and Administrative Tribunal Act 1998.

Planning And Environment Act 1987 Victorian Civil And Administrative Tribunal Act 1998

5. The use of 54 The Avenue, Ferntree Gully for the purpose of a residential building must cease other than in accordance with the permit issued at the direction of the Tribunal in application for review P1973/2003 (or any other permit for residential building subsequently issued),.

6. The Applicant must serve a copy of this order on the Respondent pursuant to Section 140 Victorian Civil and Administrative Tribunal Act 1998.