Characterisation: a transitional group home?
45The characterisation of development for the purpose of determining its permissibility in accordance with an environmental planning instrument is an essential task to be undertaken when considering any proposal for development. That task almost always involves questions of fact and degree; it often involves, as in the present case, the proper interpretation of the relevant environmental planning instrument (Chamwell Pty Limited v Strathfield Council [2007] NSWLEC 114; 151 LGERA 400 at [57]).
46Moreover, as all parties accepted, characterisation of the development for which the Consent was granted to Adele is "jurisdictional". In judicial review proceedings of the present kind, the correct characterisation of development must be determined by this Court on the evidence before it rather than by any notion of deference to the decision made by the JRPP (Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; 136 LGERA 288 at [86]).
47As it happened, the evidence tendered in these proceedings was, for all relevant purposes, the same evidence available to and considered by the JRPP. Nonetheless, the central issue in these proceedings involves my determination as to whether the development described in the evidence properly engages the permissible development purpose of a transitional group home.
48The principles that inform the approach to characterisation have been the subject of a number of decided cases. Those cases are usefully collected by Pain J in Dooralong Residents Action Group Pty Limited v Wyong Shire Council [2011] NSWLEC 251; 186 LGERA 274 at [34] - [35] and [99]. These principles, about which there is agreement among the present parties, may be summarised as follows:
(i) characterisation must be undertaken in a commonsense and practical way;
(ii) a use must be for a purpose, being the end to which the use of the land can be seen to be put;
(iii) the use of land involves no more than the physical acts by which the land is made to serve some purpose;
(iv) in determining whether land is used for a particular purpose, an inquiry into how that purpose could be achieved is necessary;
(v) the characterisation of the purpose should be undertaken at a level of generality necessary and sufficient to cover the individual activities, transactions or processes carried on and not in terms of those detailed activities or processes, but not so general as to embrace activities transactions or processes which differ in kind from the use to which the activities, as a class, are proposed for the land in question; and
(vi) the characterisation is undertaken for a planning purpose.
49Ms McAuley had initially founded her submission as to characterisation by reference to the definition of "transitional group home" in the LEP. She did so on the basis that the SEE focused upon that definition and made no reference to the relevant definition found in the Affordable Housing SEPP. However, reports prepared by officers of the Council for consideration by the JRPP when determining the development application made extensive reference to both the LEP and the relevant definitions found in the Affordable Housing SEPP. Indeed, it was contended in the report prepared by Council staff that the Affordable Housing SEPP was the overriding planning instrument. As a consequence, focus was placed upon its provisions for the purpose of characterising the proposed development and reporting upon its permissibility.
50Given that the reports prepared by Council staff were prepared specifically for consideration by the JRPP, it is likely that the question of permissibility was determined with focus upon the Affordable Housing SEPP. The probability that this was the basis of assessment is supported by the imposition of Consent Condition 49 to which I have earlier referred. That was the condition requiring the development to operate in accordance with the definition of "transitional group home" as it appears in the State Policy.
51Ultimately, Mr S Berveling, counsel for Ms McAuley, accepted that in making its decision as to the permissibility of the development, the provisions of the Affordable Housing SEPP, including the definition of "transitional group home", were in all probability considered and applied by the JRPP. However, he maintained the submission that whether regard be had to the definition found in the State Policy or to that found in the LEP, properly characterised, the development proposed by Adele did not fall within either definition. As a consequence, the development fell within Item 4 of the land use table to cl 9 of the LEP and was therefore prohibited.
52As I have earlier recorded, that part of the Property proposed for development is within the Rural 1A Zone shown on the map to the LEP. The land use table for land so zoned is framed so that those purposes of land use for which no development consent is required are nominated in Item 2 of the table and those purposes of use for which development consent is required are nominated in Item 3. Both "group homes" and "dwelling-houses" are nominated in Item 3. Any form of development not nominated in either Items 2 or 3 is prohibited: Item 4. Thus, it is necessary that the Adele development be properly characterised as a "transitional group home" in order to be permissible in the Rural 1A Zone. It is not submitted by the respondents that the development for which consent was granted engages any other form of land use nominated in Items 2 or 3 of the land use table.
53While the fact that "dwelling-houses" are a permissible form of development in the Rural 1A Zone is sufficient to engage the provisions of cl 43 of the Affordable Housing SEPP, it remains necessary to determine that the development proposed engages the definition of a "transitional group home" within the meaning of that Policy. If it does not, that Policy does not override the prohibition expressed in the LEP.
54All parties accept that, whichever definition of "transitional group home" is applied, broadly speaking there are four concepts to be considered for the purpose of categorisation. Given the manner in which the submissions proceeded, it is convenient to identify these concepts by reference to the definition appearing in the Affordable Housing SEPP. Those concepts are:
(i) that the group home be a "dwelling";
(ii) that it be occupied by persons as a single household, with or without paid supervision or care and whether or not those persons were related or payment for board and lodging was required;
(iii) that the "dwelling" be used to provide temporary accommodation for the relief or rehabilitation of people for drug or alcohol rehabilitation purposes or for people with a disability or used to provide half-way accommodation for persons formerly living in institutions or temporary accommodation comprising refuges for men, woman or young people; and
(iv) development so described does not include development to which the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 applies.
Paragraph (iv) is not relevant to any issue raised in the present proceedings.
55The primary focus of the submissions made by Ms McAuley is upon the first element of the definition namely that which requires that the group home be "a dwelling". While not defined in the Affordable Housing SEPP itself, by cl 4(2) it is defined for the purpose of that Policy in the Standard Instrument in the following way:
dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile.
56As will be apparent from [38], subject to a qualification that is not presently relevant, the term "dwelling" is defined in the LEP in terms that do not materially differ from those that I have just quoted.
57Applying the provisions of the definition, Ms McAuley submits that the buildings proposed to be erected by Adele in accordance with the Consent will not be constructed so as to be capable of being occupied or used as a separate domicile. In essence, she focuses upon the number and size of buildings concerned and the separation among buildings of those facilities that would ordinarily identify a room or suite of rooms necessary for separate living. At the forefront of her submission is the proposition that the degree of permanence implicit in the term "domicile" is not present for the very reason that the development application proposes a stay for clients of between three and six months, it being the very purpose of Adele's program that occupants of the facility be sufficiently rehabilitated so that they are able to return to outside employment and independent living elsewhere.
58If the focus for present purposes is directed to the definition of "dwelling", independently of the use of that term in context, there is much jurisprudential support with its emphasis on permanence, or at least intended permanence, of occupation at a particular location. The concept of "domicile" as used in the definition of "dwelling" was considered by Biscoe J in Wollongong City Council v Vic Vellar Nominees Pty Limited [2010] NSWLEC 266; 178 LGERA 445. The definition there being considered by his Honour was not materially different from that presently applicable. His Honour said (at [32]):
In this context, 'domicile' embodies the idea of a permanent home or a significant degree of permanency of habitation or occupancy.
Authority is there cited which I do not repeat but respectfully adopt.
59Moreover, there have been a number of decided cases in which it has been necessary to determine whether the use of a building constituted that of a "dwelling" or "dwelling-house" for the purpose of planning law where occupation of the building or buildings was by a number of unrelated persons. One such decision, relied upon by Ms McAuley, is that of the Court of Appeal in Burwood Municipal Council v Aboriginal Hostels Ltd (1979) 39 LGRA 150. The respondent owned two houses in Metropolitan Sydney that had been purchased to provide accommodation for Aboriginal youth, selected to attend technical college or apprenticeship courses in Sydney. Each house was managed by "house parents" who provided some supervisory and disciplinary function. It was claimed that the houses were being used as "dwellings". The Court of Appeal rejected that submission.
60The leading judgment was delivered by Samuels JA (Hutley and Mahoney JJA agreeing). In rejecting the contention that the buildings were used as dwellings, his Honour said (at 152-153):
The group here is not based on family or kin relationship, nor upon choice arising from some personal or social association, or community of interest, but is established by authority outside the group using criteria such as membership of the aboriginal race, and adaptability and desire for technical training. The boys, when selected for a course, are sent to this accommodation and expected to remain there for the period of their training. But they are necessarily a transitory population; because they remain only for the duration of their course and their stay in no case exceeds twelve months ... When their time is up, they are bound to go, unless in particular cases they are allowed to remain for a few months. But this privilege is not exercised solely at their option. In addition, the method of financial organization by which the group is governed, including Treasury audit and funding of the group from external sources, is hardly comparable to ordinary domestic arrangements.
61His Honour also addressed the concept of "domicile" in the context of the definition of "dwelling". He said (at 153):
'Domicile' here is used in preference to 'residence' or 'home' or 'habitation' and must be intended to bear its technical legal meaning which is that of a place of permanent residence to which the subject, if absent, has the intention of returning. A person may have several residences; but can have only one domicile, at least for any one purpose. I do not think that the buildings can possibly be regarded as the pre-eminent place of permanent residence of any of those who now occupy them.
62Ms McAuley submits that the accommodation arrangements that were considered in Aboriginal Hostels "are akin to those" of the Adele development application. Clients enter the program conducted at the Property for the duration of Adele's rehabilitation program, but, upon its completion, are required to leave. This is transitory accommodation and cannot, by dint of that fact, constitute the "domicile" of those undertaking the residential program.
63I accept the submission of Ms McAuley to the extent that one must acknowledge the word "dwelling", as defined, when seeking to determine whether a given form of development may properly be characterised as "transitional group home". The fact that the word is defined in each of the planning instruments being considered requires as much. However, the circumstance that the word is separately defined does not have the consequence that its defined meaning controls the meaning of the term "transitional group home", being the defined term to which the material facts are to be applied.
64As with any phrase used in either a statute or planning instrument, purpose and context are important - indeed fundamental - when determining the proper meaning of that phrase (Matic v Mid-Western Regional Council [2008] NSWLEC 113 at [7] - [9]; Wilson v State Rail Authority of NSW [2010] NSWCA 198; 78 NSWLR 704 at [12] - [13]). Relevantly, the context in which "dwelling" is to be interpreted is its use within a composite phrase that is, in turn, the subject of separate definition in each of the Affordable Housing SEPP and the LEP. The interpretation of that phrase should not be undertaken by severing the phrase into parts and applying a meaning to each severed part (Wollongong City Council v Vic Vellar Nominees Pty Ltd at [47]). As Biscoe J observed in Vic Vellar Nominees, the High Court in Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389 at 400 cited with approval the observations of Oliver LJ in Exxon Corporation v Exxon Insurance Consultants International Ltd [1982] Ch 119; [1981] 3 All ER 241 where his Lordship said (at 144):
... for my part I do not think that the right way to apply a composite expression is, or at any rate is necessarily, to ascertain whether a particular subject matter falls within the meaning of each of the constituent parts, and then to say that the whole expression is merely the sum total of the constituent parts. In my judgment it is not necessary, in construing a statutory expression, to take leave of one's common sense.
65I am not persuaded that Ms McAuley has applied these principles when formulating her submissions as to the proper interpretation of "transitional group home". While I accept that the group home is required to comprise a "dwelling", the meaning of that term in the composite phrase is qualified by the provisions of paragraphs (a) and (b) of the definition which determine both the manner of its occupation as a building and the purpose of its use. That purpose, so described, is relevantly the provision of "temporary accommodation ... for drug or rehabilitation purposes" (or, in the case of the LEP, for "socially disadvantaged persons"), a requirement that could never satisfy the "technical legal meaning" of "domicile" as applied in Burwood Municipal Council v Aboriginal Hostels Ltd.
66Emphasis upon permanence of occupation of the kind adverted to in the latter case was at the forefront of the submissions advanced on behalf of Ms McAuley. When asked in the course of argument how a particular facility might accord with the level of permanence said to be required by use of the word "dwelling" and yet provide the "temporary accommodation" of the kind referred to in the definition, the response was to acknowledge that there is "conflict within those two components of the definition" (Tcpt 26: 16 - 17). In further response to that question, two further points were, in essence, made by Mr Berveling.
67First, he pointed to a number of definitions within the LEP in which particular kinds of land use, involving the provision of accommodation, are identified without reference to a "dwelling". Thus, a "boarding house" is defined by reference to "a building" providing certain facilities; each of "hotel" and "motel" are defined by reference to "premises" while "seniors housing" is defined to mean "residential accommodation" consisting of different kinds of building, only one of which is referred to as a dwelling. As a consequence, so it is submitted, the use of the word "dwelling" in the definition of "transitional group home" was intentional and ought to have the connotation of permanence for which the applicant argues.
68Secondly, an example offered of the way in which the definition of "transitional group home" would operate in the manner contended for was as a place of residence for someone suffering substance dependency who had no other place to live. Thus, so the argument ran, that would constitute the only place to be called "home" by that person at the time of admission and as the period of stay was indefinite it had the requisite degree of permanence.
69A further example that was offered was use of a facility having the attributes of a house but used by a person as a half-way house, enabling that person, either by reason of disability or some form of social disadvantage, including drug or alcohol dependency, to gain sufficient skills in order to return "into mainstream society" (Tcpt 30: 25-30). When I suggested that the facility proposed by Adele fell within that example, the proposition was rejected on the basis that the proposed building or buildings did not constitute a "dwelling". The response appeared to be founded on the proposition that the facility proposed by Adele is for the purpose of rehabilitating rather than accommodating those dependent upon drugs or alcohol and thus their stay is not for the purpose of residence but rather for rehabilitation.
70The written submissions filed on behalf of Ms McAuley also suggest that the size of the buildings proposed for the "transitional group home" are antithetical to the definition of "dwelling". The number of bedrooms, the number of buildings and the nature of the facilities provided, particularly those within the community pavilion, are identified in support of this submission.
71I am not able to accept these submissions. The application of a "commonsense" approach to the understanding of the word "dwelling" when used in the definition of "transitional group home" requires that its defined meaning, at least as determined in earlier jurisprudence, be modified so as to operate harmoniously with the defined expression of which "dwelling" is but an element.
72Approaching the definition of "transitional group home" in that way requires, so it seems to me, a building -
(i) that contains a room or number of rooms;
(ii) that room or those rooms, when considered in their totality, are to be constructed or configured so as to contain those facilities that are necessary for the occupant or occupants as a group, to enjoy self-contained living; and
(iii) whose occupants have a community of interest or cohesion in using those facilities while residing in that building.
73Although expressed in a little more detail, I do not perceive these elements of "dwelling", at least at a level of principle, to be inconsistent with recent authority. In Wollongong City Council v Vic Vellar Nominees Pty Ltd Biscoe J said (at [30]):
In Lewin v End [1906] AC 299 at 304 Lord Atkinson said: "By a 'dwelling-house' I understand a house in which people actually live or which is physically capable of being used for human habitation." This, I think, is roughly reflected in the two parts of the WLEP definition of "dwelling", which is then incorporated into the definition of "dwelling-house".
As I have earlier recorded, the definition of "dwelling" there being considered by his Honour did not differ materially from the definition presently being considered. It is a description apt to be applied when interpreting the "dwelling" aspect of a "transitional group home".
74The elements of a "dwelling" that I have identified for the purpose of considering its meaning within the definition of "transitional group home" is informed by paragraphs (a) and (b) of the latter definition. Assuming the "dwelling" to comprise more than one room, my reference to the necessity for the rooms, in their totality, to provide a facility for separate living by the occupants, as a group, is informed by the requirement in paragraph (a) that the building be occupied "as a single household". Such a notion may generally identify a group of people living together as a unit (Oxford English Dictionary, on-line edition) or "the people of a house collectively" (Macquarie Dictionary, on-line edition). An element of cohesion among occupants would generally be an aspect of a "household", particularly in the use and enjoyment of its facilities as a whole. In Blacktown City Council v Haddad [2012] NSWLEC 224; 192 LGERA 264, having identified the definitions to which I have referred, Pepper J observed (at [50]):
This is not to say that living together as a unit cannot nevertheless occur between unrelated occupants of a home. Such arrangements are commonplace in share-households. And while the occupants will not engage with each other in the same way that a family would, they will nevertheless live as a unit, dividing household chores and bills, and typically engaging in a degree of social activity.
75The qualification expressed in paragraph (b) of the definition of "transitional group home" as applied by the Affordable Housing SEPP provides further insight into the manner in which the term "dwelling" should be understood. Not only does that paragraph, by its reference to "temporary accommodation", gainsay the conventional jurisprudence as to the meaning of "domicile" but by stating the purpose for which residents can use the building, the paragraph identifies the commonality or community of purpose sufficient to identify the unifying element of a "single household".
76Setting aside the size of the proposed facility for the present, the buildings in the "group home" precinct do, to my mind, contain the elements of "dwelling" as I have identified them relevant to the permissible development purpose being construed. The bedroom pavilion contains bedrooms, each with ensuite bathing and toilet facilities - a facility that is not uncommon in "traditional dwellings" at the present time (Haddad at [52]). Each of the two floors of bedrooms has lounge facilities for clients as well as laundry facilities that are shared among them.
77There is a single kitchen, pantry and single dining area designed to accommodate all those who are resident in the group home precinct. Apart from the smaller lounge areas on the bedroom floors, there is a larger lounge area adjacent to the dining area intended for residents as a group. Also adjacent to this area is a computer room. These are all facilities necessary and appropriate to enable the clients, as a group, to enjoy self-contained living at the facility (cf Wollongong City Council v Vic Vellar Nominees Pty Ltd at [64]).
78When determining whether the use of the building or buildings exhibits the elements of a "dwelling" in the manner identified by me, it is also important to recognise that the proposed and sanctioned land use involves a residential program for rehabilitation of drug or alcohol dependent males. While undertaking that rehabilitation program, it is integral to it that the clients will reside at the facility. That will be the client's place of abode for a period of between three to six months. Such a period of residence is consistent with the "temporary accommodation" identified as a necessary component of the permissible form of land use.
79The community of interest or cohesion to which I have referred is evident in two ways from the material supporting Adele's development application. First, resident clients have a community of interest in seeking rehabilitation from a common addiction. The program for rehabilitation involves the provision of therapy in group sessions and supervised work on the Property as a group. While individuals may leave because of expulsion following disobedience of house rules or upon completion of a program, the community of interest, rehabilitation program and work training on the Property is ongoing.
80Secondly, the cohesion or community of interest is apparent from the requirement that clients undertake "domestic" chores associated with the "dwelling", much as would be required in a "traditional" single household. Responsibility for those domestic chores extends to cleaning and kitchen duties for the common good.
81In summary, I am satisfied on the evidence before me that the elements of "dwelling" as used in the defined expression "traditional group home" are, at least in principle, satisfied in the development proposed by Adele and to which consent was granted by the JRPP. This is so whether reference is made to the definition adopted for the Affordable Housing SEPP or that found in the LEP. As I understood his submission, Mr Berveling accepted that the provision of temporary accommodation for men requiring rehabilitation from drug or alcohol addiction were "socially disadvantaged persons" for the purpose of the LEP definition. Therefore, it remains to be determined whether, by reason of the size of the facility or disposition of buildings proposed by Adele, the development ceases to engage the definition of "transitional group home" expressed in either planning instrument.
82Nothing in the definition of "dwelling" identifies the necessity for the activity to be contained within a single building. Remembering that the definitions are directed to development for a purpose, use of land for the purpose of a "dwelling" or "dwelling-house" not infrequently involves consideration of more than one building identified as fulfilling either purpose. Thus, a stand-alone motor garage to accommodate vehicles used by a family occupying a "dwelling-house" will be characterised, for planning purposes, as a "dwelling-house" use.
83Equally, modern single family homes are sometimes designed with two or more pavilions between or among which the facilities essential for separate family living are dispersed. Whether it be a granny-flat, teenage retreat, pavilion containing swimming pool, spa and exercise room or pavilions separately containing sleeping accommodation and family living accommodation, all can be found and appropriately characterised under the planning rubric of "dwelling-house". Often these separate buildings or pavilions will have close physical interconnection. So also in the present case.
84As I have earlier described, the three pavilions that constitute the centre of the "group home" facility share a common lower ground floor slab and are interconnected by covered walkways to facilitate comfortable and easy passage between or among them.
85In summary, I do not regard the fact that the facility provided in the group home precinct is divided among three buildings to be a matter that disengages the proposed development from the definition of "transitional group home".
86As I have earlier recorded, Ms McAuley submits that the size of the accommodation and living elements of the proposed facility are such as to render the "dwelling" designation to be inappropriate. I do not agree.
87Neither the Affordable Housing SEPP nor the LEP seek to restrain the number of bedrooms that can be provided, nor the number of persons that can be accommodated in a transitional group home facility. For this reason, the number of bedrooms provided does not, of itself, determine that a particular building or buildings do not constitute a "dwelling" (Haddad at [45]). Clearly, the number of bedrooms provided in a dwelling potentially impact upon the size of other facilities necessary to accommodate the use of the building as a dwelling.
88Moreover, it is implicit in the definition of "transitional group home" that the facility will have an "institutional" aspect to it. This follows from the fact that clients will not be related and that their entitlement to reside in the facility is dependent upon them having social or physical characteristics that separate them from the norms of society. Inevitably, the provision of facilities necessary to enable those clients to operate as a "single household" may logically cause some of the home facilities, such as kitchens and lounge areas, to differ from those that might be expected in a traditional family house.
89Further, there are provisions of each planning instrument that speak against the kind of limitation on size implicit in the submissions made on behalf of Ms McAuley. By cl 43(1)(a) of the Affordable Housing SEPP, development for the purpose of a "transitional group home" that does not contain "more than 10 bedrooms being within one or more group homes on a site" and which is to be carried out by a public authority is development that may be undertaken without the requirement for development consent. This provision not only contemplates that a "transitional group home" is one that may contain many more bedrooms than would be expected in a house accommodating the textbook nuclear family, but is also demonstrative of the fact that a greater number of bedrooms may be contemplated in a facility that fulfils the requirements of the defined form of development. An exercise of planning discretion is required if the facility is one not proposed by a public authority and is intended to contain that larger number of bedrooms. Logically, even the limitation of 10 bedrooms does not impose a numerical limit on the number of those who may reside in the facility.
90Reverting to my earlier observations in relation to some relationship between the number of bedrooms and the nature and size of associated facilities necessary for self contained living, it is logical to assume that in a facility providing 10 bedrooms, kitchen, lounge and laundry facilities are likely to be larger than those necessary to service a three or four bedroom home.
91In the context of the LEP, the definition of "special care home" needs to be noticed. Such a home is also defined as meaning a dwelling having a number of characteristics. One of those characteristics is that it "does not contain more than five bedrooms or is occupied at the same time by not more residents ... than is equal to the number calculated by multiplying the number of bedrooms in the home by two." First, the definition demonstrates that the number of bedrooms was considered by the drafter when defining specific purposes for development but chose not to impose such a limitation when defining a "transitional group home". Secondly, the formula identified in the definition of "special care home" would seem to contemplate that the "dwelling" may contain a large number of bedrooms provided that number meets the formula for resident occupation stated in the definition.
92Ms McAuley identifies the existence of an administration office, interview rooms and a conference room as being the antithesis of rooms or areas that one would expect to find in a "dwelling". While I accept that those areas, so described, would not usually be found in a traditional house, I do not accept that their existence denies the facility, seen as a whole, from being characterised as a "transitional group home". First, as I have already indicated, the definition, read as a whole, contemplates an institutional aspect to this form of development. As people are accommodated on a temporary basis to undertake rehabilitation or to use the premises as a half-way house, some form of administration with office facilities for administrative staff must clearly have been in contemplation. As paragraph (a) of the definition applied by the Affordable Housing SEPP contemplates, occupants may be supervised. Provision for supervisors needs to be made within the facility.
93Moreover, the definition makes apparent that the group home is something more than a place of residence. It requires that the "dwelling" itself be "used to provide temporary accommodation ... for drug or alcohol rehabilitation purposes". A commonsense reading of that requirement strongly indicates that there should be a facility or facilities onsite, such as meeting rooms, in which a program actively facilitating rehabilitation can be undertaken. The provision of those particular rooms are but a component of the overall purpose for which development of a "transitional group home" may be undertaken and do not determine the characterisation of the development considered as a whole (Chamwell v Strathfield Municipal Council at [38] and [45]).