Mackenzie v Warringah Council

IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES (1)0387 of 2002

5 February 2003 LUKE MACKENZIE Applicant v WARRINGAH COUNCIL Respondent Judgment

1 The Court is required to determine a question of law which has arisen in respect of the applicant's development of a new boarding house at 789 Pittwater Road, Dee Why. 2 By development application No. 2001/1550 dated 25 October 2001 the applicant sought consent of the respondent ("the council") for the demolition of an existing dwelling and the erection of a new building comprising 23 (now 22) rooms ("the development"). At ground floor level the development would contain a communal kitchen and dining room for shared use by the boarders and a resident manager. Twelve bedrooms are located on the same level. Each room is provided with an ensuite bathroom. The remaining bedrooms are proposed to be located on the first floor, each being equipped with its own ensuite bathroom. A car park, laundry and storage areas are located on the lower ground floor. 3 It is proposed that each bedroom would be occupied and used separately and it is an agreed fact that none of the bedrooms are capable of being occupied or used as a separate domicile. A plan known as the Boarding House Management Plan ("the management plan") would regulate the tenure of the occupants. The resident manager is required to supervise the occupants and to ensure their compliance with rules to be known as "Boarding House Rules" ("the Rules") which, inter alia, impose a code of conduct on the occupants. 4 The site is affected by the provisions of the Warringah Local Environmental Plan 2000 ("the LEP"). Pursuant to its provisions the site is located in the E1-Dee Why North Locality as set out in Appendix E of the LEP. The site is not located within a local retail centre as illustrated on the locality map for the E1 Locality. The map was not tendered and no definition of "map" is included in the LEP. It is agreed that the development would be a class 3 building for the purposes of classification under cl A3.2 of the Building Code of Australia.

Categorisation of uses 5 The LEP makes provision for three categories of land uses in the locality E1-Dee Why North. Housing is in category 1 except housing within the local retail centres shown on the map. Business premises are also permitted in category 1 within the local retail centres indicated on the map. 6 Category 3 includes the uses of hotels and of short-term accommodation. In addition to the listed uses contained in category 3, other uses may be included as follows:- For land outside local retail centres, also development that is Category 1 within those centres, except development for the purpose of health consulting rooms, housing or housing for older people or people with disabilities.

Question of Law 7 The following question of law is raised by the applicant:- Whether the application, the subject of these proceedings should be assessed as a category 1 or 3 application pursuant to the Dee Why North Locality Statement of the Warringah Local Environmental Plan 2000.

Applicant's Submissions 8 The applicant submits that the development is one for "housing". The term "housing" is defined in the Dictionary to the LEP as follows:- Housing means development involving the creation of one or more dwellings whether or not used as a group home. 9 The term "dwelling" is defined as follows:- Dwelling means a room or a suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile. 10 The term "group home" is defined but does not apply to the development. 11 The applicant submits that the development is "housing" because the whole building comprises a self-contained domestic establishment for the use of the occupants. Accordingly the applicant claims it must be characterised as a "dwelling". In support of its submission the applicant relies upon the observations of Pearlman J in Wyong Shire Council v Ardi Pty Ltd (2000) 112 LGERA 85 at p 90 where the Chief Judge stated:- Characterisation of use is not generally concerned, from a planning control perspective, with the intentions of persons, but instead is concerned with the actual use to which the land is put… Accordingly, I refrain with respect from applying the obiter dictum of Samuels JA in Burwood Municipal Council v Aboriginal Hostels , and instead I focus my attention on whether or not the premises are being occupied or used, or are capable of being occupied or used, as a place of residence or home. 12 The management plan submitted with the development application stipulates that the occupants are required to enter a lease to reside at the boarding house for a period of not less than 42 days. The applicant submits that such tenure creates the necessary "domicile" or "place of residence" or "abode". The applicant also submits that the fact that other persons will also reside in the building does not detract from the true characterisation of the premises as "housing". 13 The applicant says that the development is not within category 3 of the LEP. Category 3 includes "short-term accommodation" which is defined in the Dictionary as follows:- short-term accommodation means the use of land for the temporary accommodation of the travelling public and includes a serviced apartment, a motel, a holiday flat and a backpackers hostel, but does not include a dwelling or a hotel. 14 The applicant submits that the use of the word "temporary" in the definition of "short-term accommodation" shows that such term is intended to apply to accommodation that is not permanent and submits that the definition does not apply to long-term temporary accommodation. The applicant relies, by analogy, upon the definition of the term "temporary sign" contained in the Dictionary to the LEP which infers that a sign is a temporary one if displayed not earlier than 28 days before the relevant event and is removed seven days thereafter. On this basis a period of less than six weeks is suggested by the applicant as constituting a "temporary" period. 15 The applicant also relies upon the words "travelling public" to show that the definition of "short-term accommodation" has no application to the development. The applicant submits that the requirement of a minimum occupation of 42 days would exclude the "travelling public", and the accommodation is therefore not "temporary". 16 Lastly, the applicant submits that the premises do not constitute "business premises" which is defined in the Dictionary to the LEP as follows:- business premises means a building or place in which an occupation, profession, light industry or trade or banking activities is or are carried on providing a service directly and regularly to the public, but does not include a building or place elsewhere defined in this Dictionary. 17 The applicant submits that properly characterised the development constitutes "housing" and is therefore not a "business". Council's Submissions 18 Council submits that because the rooms in the development do not have kitchens or laundries they are incapable of occupation as separate domiciles. Accordingly, the definition of "dwelling" is not satisfied because "domicile" by the definition is made an essential constituent of "dwelling". Since the concept of housing is predicated upon the creation of "one or more dwellings", the proposed use cannot comprise "housing" as defined. 19 The council submits that the proposed use is properly characterised as that of a boarding house and as such falls within the category of "business premises". The management plan submitted with the application shows that a manager is to supervise the activities of the occupants, to maintain a register of occupants and to fulfil other duties. The manager is required to enforce the Rules. The council relies upon these matters together with the provision of the shared kitchen, dining facilities and cleaning arrangements in support of its submission that the proposed use constitutes a business enterprise, being the provision of rooms and other services. 20 The council has referred also to the definition of "short-term accommodation" and submits that the development proposal constitutes either "short-term accommodation" or "business premises". The use of "short-term accommodation" is a category 3 use as are business premises which fall outside the local retail centres shown on the map.

21 There is no definition in the Dictionary of the word "temporary" nor of the uses in the inclusive list. The term "hotel" is a separately defined term and is not relevant to the present circumstances.

22 It is necessary in each case to determine the true nature of an occupancy as considered in South Sydney Municipal Council v James & Anor (1977) 35 LGRA 432 (CA). Reynolds JA at p. 440 said: In my opinion a building is used as a dwellinghouse within the meaning of cl 23 if its use is such that it can fairly be said as a matter of fact that it is occupied in much the same way as it might be occupied by a family group in the ordinary way of life and that it is not a use and occupation more appropriately described in other categories of residential buildings. 23 In Ashfield Municipal Council v Australian College of Physical Education Ltd (1992) 76 LGRA 151 at 155 Pearlman J adopted such test and observed:- One can, within that guideline, look at a building and if it can be fairly said, as a matter of fact, that it is occupied in much the same way as might be occupied by a family group in the ordinary way of life, it is a dwelling; but, as a matter of fact, it might be used in a way which is more appropriately described in other categories of residential buildings, and, if so, that building is more appropriately characterised in that manner and not characterised as a dwelling. The question, therefore, is one of fact. 24 Accordingly it is a question of fact to determine the true nature of the proposed occupancy. To be characterised as a "dwelling" the Court must be satisfied that the boarding house can be occupied as separate domiciles. In Peter Walter Carmont v Ballina Shire Council (Pearlman J, NSWLEC, 7 August 1998, unreported) Her Honour stated:- What is relevant is whether or not the development for which consent is sought is for the erection of a suite of rooms "so constructed or adapted as to be capable of being occupied or used as a separate domicile."

Characterisation of Occupancy Duration of Occupation 25 The concept of permanence as an essential element of domicile has been recognised by the New South Wales Court of Appeal. In North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd (1990) 21 NSWLR 532 Mahoney JA said at p. 538:- Thus, a residential hotel may have a smaller degree of permanence than a residential club or a hostel. It is, I think, not inconsistent with the thrust of the definition that there should be within it a kind or category of residential building which envisages a significant degree of permanency of habitation or occupancy. The description of a flat as a "dwelling" or a " domicile" carries with it the notion of that degree of permanency.

His Honour's observations were adopted by McClelland CJ in Church of England Children's Homes Burwood v Burwood Municipal Council (1979-81) 43 LGRA 165 at p. 172.

26 The absence of any kitchenette or dining facilities in the rooms show that the use is essentially that of a hostel. The accommodation to be provided is suitable for use as transient or temporary accommodation. The development does not include the element of permanence of occupation necessary to sustain the concept of a "dwelling". 27 The Court notes that accommodation requirements of our society are changing as was recognised by McClelland CJ in Church of England Children's Homes Burwood where His Honour stated:- Today increased mobility is notoriously one of the distinguishing features of life, especially that of the young, compared with that of previous generations. Communes of young people have become a feature of urban and rural life. The fact that their membership is ever-changing merely underlines the fact that "permanent" and "transitory" have a more relative application than formerly to people's residential habits.

In the future accommodation of the type proposed could be regarded as sufficiently permanent to constitute "dwelling". However consistent with the above authorities, the evidence before the Court does not enable such finding to be made. Supervision 28 The management plan demonstrates that each occupant will be required to conform to the Rules. The Rules require the occupants to observe certain standards of conduct. For example, alcohol is not to be consumed in certain areas or outside certain hours, smoking is restricted, candles and incense are prohibited, occupants are required to maintain the kitchen, to clean plates and utensils after use, to be quiet and orderly at all times and to keep their rooms clean. Such rooms are to be made available for inspection by the manager once a week. 29 The decision in Ardi requires the Court to determine whether the development could be occupied or used as a place of residence or home. The obligations imposed by the Rules upon the residents are extensive, and the manager retains supervisory control over their conduct. Such obligations are consistent with a business use namely the provisions of lodgings, subject to conditions, for reward. They are not the kind of obligations consistent with a dwelling, a residence or housing wherein the occupant is entitled to enjoy his or her abode without imposed supervision or control. Conclusion 30 There are two reasons which lead the Court to the conclusion that the development does not constitute "housing". To satisfy such definition permanence of occupation must exist. The concept of domicile is predicated on permanence, and domicile is an essential ingredient in the concept and definition of "dwelling". Occupation of a minimum period of 42 days does not establish permanency. 31 Secondly, the extensive supervisory control to be exercised by the manager does not accord with the freedom inherent in a separate domicile. Such control is consistent with a boarding house or hostel, which properly characterised does not constitute "housing". 32 The above finding does not necessarily result in the conclusion that the proposed use constiutes "short-term accommodation" as defined. To satisfy that definition it would be necessary to show that the rooms would be used for the "temporary accommodation of the travelling public". The accommodation to be provided in this instance does not suggest that it is to be limited to that purpose. 33 The Court therefore concludes that the development does not constitute "housing" as defined, nor does it constitute (upon the evidence) "short-term accommodation". The term "business" requires an activity "of which it can be said that it has a significant commercial purpose or character": see Rath J in Hope v Bathurst City Council (1978) 38 LGRA 1 at 5. Properly characterised the use proposed for this development is that of a business, being the provision of rooms and of services.

Answer to the Question of Law 34 The Court answers the question of law asked of it as follows:- The development application is not for "housing" and therefore not category 1 development pursuant to the Dee Why Locality Statement E1. It is category 3 "business premises" or" short-term accommodation".

Order 35 The Court orders that the exhibits be returned.

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