Sales Search Pty Ltd v The Hills Shire Council

a room or suite of rooms occupied or used as a separate domicile, or

a room or suite of rooms so constructed or adapted as to be capable of being occupied or used as a separate domicile: (Stephen Bowers Architects Pty Ltd v Waverley Council [2003] NSWLEC 16; 125 LGERA 292 at [24]). The focus is on the first limb of the definition, since the building is not so constructed or adapted as to be capable of being used or occupied as a separate domicile. 20 The submissions of Mr PR Rigg, appearing for the owner of the property, may be briefly summarised. The submissions rely upon the absence from the building of the usual facilities noted above. Mr Appleyard, the civil and construction engineer who gave evidence for the Council, said that a kitchen and a fixed bath or shower are essential parts of a residential dwelling. In Louinder v Stuckey (1984) 2 NSWLR 354, Glass JA observed (at 357): In my opinion the current usage of the term [dwelling house] denotes premises (unassisted by definition) which contain not only accommodation for sleeping but also kitchen, bathroom and lavatory facilities. It is of the essence of the term that all these facilities are separately contained within it ... 21 In Hornsby Shire Council v Monk [2001] NSWLEC 248, Bignold J held that a building without a kitchen providing a stove was not a separate dwelling. In Townsend v Lake Macquarie City Council [2004] NSWLEC 38, I held at [16] that the absence of kitchen, bathroom and laundry facilities necessarily takes a building outside the ambit of a definition of "dwelling", similar to that in the present case. In Wollongong City Council v Vic Vellar Nominees Pty Ltd [2010] NSWLEC 266; 178 LGERA 445, Biscoe J held that in his view a "dwelling" and a "dwelling house" similarly defined also requires those facilities. 22 It follows, according to the submissions, that one must look at the facilities to see whether a building satisfied the definition of "dwelling". Moreover, Mr Rigg submits that the intention of the user or occupier of the building is irrelevant. 23 I find myself unable to agree with these submissions. The attributes referred to by both Mr Rigg and Mr IJ Hemmings (appearing with Ms A Hemmings for the Council) all relate to the second limb of the definition of "dwelling". Thus, in Townsend I observed the building will not be "so constructed or adapted as to be capable of being occupied as a separate domicile" by virtue of the absence of kitchen, bathroom and laundry facilities. The question of whether the building in that case would or would not be "occupied or used ... as a separate domicile" did not arise. 24 In considering the first limb of the definition the focus must be on the word "domicile". In Vic Vellar Nominees Pty Ltd Biscoe J held, at [32], that in this context "domicile" embodies the idea of a permanent home or a significant degree of permanency or occupation. Biscoe J cited a large number of authorities in support of this statement, including Burwood Municipal Council v Aboriginal Hostels Ltd (1979) 39 LGRA 150 at 153, North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd (1990) 21 NSWLR 532 at 537 - 538, and KJD York Management Services Pty Ltd v City of Sydney Council [2006] NSWLEC 218; 148 LGERA 117 at [8] - [18], inter alia. I accept this as the concept of the word "domicile". 25 The question then becomes whether Mr Garton is occupying a room or suite of rooms as a separate domicile. The answer is obviously yes. He has lived in the building, apart from one break of about nine months, for the last 20 years. He does not live anywhere else, and has not done so for many years. There is nowhere else that he could call his domicile. He calls it his home. The place that a person uses as his domicile does not necessarily have to contain the facilities that one would normally find in a house. A person might have as his or her domicile a caravan, or even a tent, as long as it has a sufficient degree of permanency of habitation or occupancy. Accordingly, even if it could be said that Mr Garton is, and has been, doing no more than camping in a building which has no facilities, the degree of permanency of his habitation or occupancy makes it his domicile. Importantly, there is nowhere else which could be described as his domicile. 60In a recent decision of this Court, Abdo v Fairfield City Council; Tony & Janet Partners Pty Ltd v Fairfield City Council; Abdo v Fairfield City Council (No 2) [2012] NSWLEC 247 Lloyd AJ, considered whether rooms within a boarding house were dwellings and states: 9 The definition of "multi-unit housing" means that the proposed five self-contained ground level units fall within that definition. Each unit is constructed so as to be capable of being used as a separate domicile, having all the facilities that one finds in a dwelling, including a bathroom/laundry and a kitchen; and each unit has private access to ground level open space. The fact that the plans show a room described as "common area" (which is separately accessed from ground level) does not disqualify these units from coming within the definition of "multi-unit housing". 61The matter was also considered by Cowdroy J in Mackenzie v Warringah Council [2002] NSWLEC 246 however in the context of whether a proposed boarding house was Category 1 or Category 3 development for the purposes of Warringah Local Environmental Plan 2000. The question before His Honour was to determine the category within which the land use would fall. In that case the uses considered were whether the boarding house would be defined as housing, short term accommodation or business premises as defined in that plan. The definitions differ from those that are included in LEP2005. At [26], His Honour concluded that, 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". 62Having regard to the authorities, I am satisfied that, with the absence of kitchen facilities and the short-term nature of occupancy, the rooms within the proposed boarding house are not dwellings. Such a decision is not inconsistent with that of Lloyd AJ in Wollondilly and follows his conclusion in Abdo. In this case, the rooms will not be occupied on a permanent basis whereas the structure in the former case had been occupied for 20 years. I follow the line of authority that determines rooms without kitchens are not dwellings. Accordingly, the boarding house is not an apartment building. I accept the council's submission that, if consent is granted to the application, it is appropriate to limit the nature of facilities that can be installed within each room so that the full range of kitchen facilities is not installed. I am satisfied, from the plans of the development and the area available within each room, that this condition can be met. 63It is then necessary that I determine whether the development is commercial premises. The definition contains a number of limbs, that is it could be a building or place used either as an office, for business purposes or for commercial purposes. The definition includes a provision that excludes those other uses defined in clause 5 and Schedule 3 to LEP 2005. 64Office, business purpose and commercial purposes are not defined in LEP 2005. There is a definition of home business and office warehouse as follows: home business means a business carried out, or partly carried out, in a dwelling (not being health care premises) or within the land on which the dwelling is situated, by the permanent residents of the dwelling, where: (a) the business involves employment of not more than one person, at any one time, in addition to the permanent residents, and (b) the business does not occupy a total floor area of more than 50m2, and (c) the business does not: (i) interfere with the amenity of the locality by reason of pollution, or (ii) involve exposure to view from any public place of any unsightly matter, or (iii) require the provision of any essential service main of a greater capacity than that available in the locality, or (iv) involve the exhibition of any notice, advertisement or sign (other than a non-illuminated notice or sign, that would fit within a rectangle 1.2 metres in length and 0.6 metres in height, that is exhibited on that dwelling or land to indicate the names and occupations of the residents of the dwelling), or (v) result in a significant increase in traffic, and (d) the goods made or produced in the building, room or rooms, as a result of the business, are not displayed or sold from the property, and (e) there is a maximum of one such business per dwelling. office warehouse means premises used for the purposes of providing office floor space in conjunction with the handling, storage, display and distribution of goods. 65The Macquarie Dictionary provides the following definition of office: 1. a room or place for the transaction of business, the discharge of professional duties, or the like: the solicitor's office. 2. the room or rooms in which the clerical work of an industrial or other establishment is done. 3. a room assigned to a specific person or group of persons in a commercial or industrial organisation. 66The proposed development would not be a building or place used as an office. 67A business is defined in the Macquarie Dictionary as being: 1. one's occupation, profession, or trade. 2. Economics the sale of goods and services for the purpose of making a profit. 3. Commerce a person, partnership, or corporation engaged in business; an established or going enterprise or concern: a clothing business. 4. volume of trade; patronage. 5. one's place of work. 6. that with which one is principally and seriously concerned. 7. that with which one is rightfully concerned. 13. be in business a. to earn a living from a commercial activity. 68Commercial is defined in the Macquarie Dictionary as being: 1. of, or of the nature of, commerce. 2. engaged in commerce. 3. capable of returning a profit: a commercial project. 69As warned by Bignold J in Crosland v North Sydney Council [2000] NSWLEC 165, the question of meaning of a term, in this case boarding house, is one of statutory construction in which dictionary meanings have a legitimate role but not a determinative role. It is appropriate that, in characterising the development, I consider what, according to ordinary terminology, is the appropriate designation for the purpose served by the use. This approach was reinforced by Preston CJ in Chamwell Pty Limited v Strathfield Council [2007] NSWLEC 114 where he states: 27 In planning law, use must be for a purpose: Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534-535 and Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 80 LGRA 173 at 188. The purpose is the end to which land is seen to serve. It describes the character which is imparted to the land at which the use is pursued: Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534. 70In Mackenzie, Cowdroy J concluded that the particular establishment for which consent was sought in that case was either category 3 'business premises' or 'short term accommodation'. A definitive answer was not provided as the terms of his judgment went to the category of use rather than precise categorisation. I note that the decision in relation to the business premises was because services would be provided, these included cleaning services as well as shared kitchen and dining facilities. 71I do not find that the boarding house is a building used or intended to be used for business purposes. No person will be carrying out their occupation, profession or trade within the building. 72Whilst it will be built for the purpose of returning a profit, the primary purpose of construction is to provide short term residential accommodation to boarders. The fact that it, like the majority of projects that come before this Court, are intended to be capable of returning a profit does not, in this case, mean that it is a building that is used for commercial purposes. Further, it is not intended that any services in the form of cleaning will be provided to boarders, they will be responsible for the upkeep of their rooms and the common room (see clause 3.1o House Rules). These facts distinguish the case from Mackenzie. 73For these reasons, I find that the boarding house is not commercial premises and is therefore an innominate use that would be permitted with consent under the provisions of LEP 2005.

Merit assessment 74Having found that SEPPARH does not apply to the application, it must be assessed against the provisions of LEP 2005. In particular, clause 13(2) requires that consent must not be granted for development unless the Court is satisfied that the proposed development is consistent with one or more of the aims of the plan and any relevant objectives for development and is not contrary to achieving the objectives of the 2(a3) zone. 75I am satisfied, on the evidence provided that, through the provision of affordable housing, it will achieve aim 1(c) and provide a diversity of land use in a safe, liveable community. I am also satisfied that the development will, as required by objective 2(a)(v) integrate with the local character of the locality. That character contains a mix of one and two storey multi-unit dwellings and, by its small footprint, all be it contained in the eastern portion of the site, will not be of a scale or density that is out of character with the local area, particularly having regard to the battle-axe subdivisions and multi-unit housing developments in close proximity to the site. In accordance with the planning principle in Project Venture, buildings can integrate with the local character without being the same. They do not have to have the same density, scale or appearance. For these reasons, I accept the evidence of Ms Laidlaw that the development is compatible with the character of the local area. 76I also find that the development and building form is in character with the surrounding built environment and, as agreed by the town planning experts, does not detract from the amenity enjoyed by nearby residents. I do consider that it is appropriate to require the provision of the blade walls as described in [39] to ensure that there is no opportunity to overlook the property to the east from the upper floors. 77The development is not inconsistent with the objectives of the zone and in particular also achieves the 2(a3) zone objectives outlined in 1(c) (i), (ii), (vii). 78It is common ground that there are no specific development standards or controls that apply to a boarding house in LEP 2005 or any Development Control Plan adopted by the council. For this reason, whilst not applying to the site, I take guidance from the controls contained within SEPPARH. The parties agree that all of the relevant controls are met. That includes the size of rooms and open space areas. I am satisfied that the size of common areas and the facilities contained therein are adequate. In accepting Dr Stubbs' evidence that it would be desirable that kitchens were provided within each boarding room, the effect of that would be a change to the characterisation of the use to an apartment building and therefore, prohibited development. This is an unfortunate consequence of the planning controls. 79Whilst the provisions of the amending SEPPARH relating to accessibility do not apply to the application, I consider that the proximity of the site to the Carlingford Shopping Centre is within reasonable walking distance. Whilst Dr Stubbs noted that the grades did not meet those specified in State Environmental Planning Policy (Housing for Seniors of People with a Disability) 2004 those provisions do not apply. The route was walked by the Court and parties and is not difficult nor does it take long to travel. The evidence also shows that there is a range of services provided within the centre or within 2k of the site that would meet the normal needs of boarders. Similarly, bus services are available and apart from Sundays (see below), services are regular, particularly during peak hours and provide services to both Parramatta and Epping. Train services are also available within reasonable walking distance though not within the 800m considered to be 'walkable'. For that reason, I am satisfied that the site is suitable for use as a boarding house. 80After consideration of all evidence provided including those issues raised by the objectors, I am satisfied that the application should be approved.

Accessible area 81If I am wrong in my findings in relation to the equivalent zone and the boarding house being permitted with consent as an innominate use under LEP2005, the parties have requested that I provide guidance in relation to the future application of the amending SEPPARH in terms of whether the site would be within an accessible area. That is to assist the applicant with any future application that may be lodged under the provisions of the policy to ensure a just, quick and cheap resolution to that application. My conclusions in relation to whether the aims and objectives of LEP 2005 and the 2(a3) zone objectives are such that I would conclude, based on the evidence provided, that the design of the development is compatible with the character of the area. 82Any application lodged under amending SEPPARH for a boarding house on the land would have to demonstrate that the site was in an accessible area. At the time the application was lodged, this provision did not apply and, pursuant to the savings provisions does not apply to the application. I have however considered this matter in determining whether the site is suitable for the development without specific regard to the distances contained in the policy. Clause 4 of the policy defines that area as being: accessible area means land that is within: (a) 800 metres walking distance of a public entrance to a railway station or a wharf from which a Sydney Ferries ferry service operates, or (b) 400 metres walking distance of a public entrance to a light rail station or, in the case of a light rail station with no entrance, 400 metres walking distance of a platform of the light rail station, or (c) 400 metres walking distance of a bus stop used by a regular bus service (within the meaning of the Passenger Transport Act 1990) that has at least one bus per hour servicing the bus stop between 06.00 and 21.00 each day from Monday to Friday (both days inclusive) and between 08.00 and 18.00 on each Saturday and Sunday. 83It is common ground that Carlingford railway station is the closest railway station and is further than 800m walking distance from the site. No light rail is available within the suburb so subclause (b) does not apply. It is agreed that there are two bus stops within 400m of the site that provide services that accord with the provisions of subclause (c) with the exception of the Sunday service. There are two bus stops within 400m of the site that provide bus services on a Sunday. One is Bus Stop 2118108 and is 300m from the site. Services on the 546 route run approximately every two hours from Epping to Parramatta, the first service being at 8.44am and the last one at 4.44pm. The second stop is Bus Stop 211875 and it is located 345m from the site. Bus route 546 runs from Parramatta to Epping also every two hours approximately. The first service is at 9.07am and the last one at 5.09pm. 84It is clear from the details provided to the Court that there is not one bus stop within 400m of the site that provides hourly services on a Sunday to any one destination between the hours of 8am and 6pm. If a boarder needed to get to Parramatta for work, they would have to wait two hours between buses. The same situation applies if they wanted to get to Epping. The fact that when considered together, services to a destination, be it a different one, are available on an hourly basis, does not, in my opinion satisfy the requirements of clause 4. The clause also requires services to operate on an hourly basis from one bus stop starting with the period from 8am to 9am. Bus stop 211875 does not satisfy this requirement. Similarly, stop 2118108 does not have any service between 4.45pm and 6pm. 85For the reasons outline above, I find that the site is not within an accessible area for the purposes of clause 4 of the amending SEPPARH. Such finding however has no bearing on my decision that consent should be granted to the application before the Court.

The conditions 86Draft consent conditions were prepared by the council as Exhibit 8 and are agreed with the exception of conditions 47, 63 iii and iv, 73 and 77. Condition 47 requires the works to be completed in accordance with a BASIX certificate however the number of the certificate had not been included in the council's draft conditions. That is because such a certificate had not been obtained. 87In accordance with clause 97A(2) of the Environmental Planning and Assessment Regulation 2000 (the Regulation) fulfilment of the commitments listed in each relevant BASIX certificate for development to which this clause applies is a prescribed condition of any development consent for the development. Accordingly, consent cannot be granted to a development that is a BASIX affected building without the imposition of a condition that requires fulfilment of the commitments listed in the certificate. 88The applicant submits that a BASIX certificate is not required as the boarding house does not contain dwellings and is therefore not a BASIX affected building. Such building is defined in clause 3 of the Regulation as follows: BASIX affected building means any building that contains one or more dwellings, but does not include a hotel or motel. 89As an alternate, the applicant has provided, as exhibit J, a BCA compliant Section J report. According to its author, the documents provide a thorough and comprehensive review of the energy, water and thermal efficiencies of the project and go beyond the requirements of the BCA and BASIX. The council did not provide any evidence to the contrary. Accordingly, I consider that condition 47 should be framed to reflect the commitments listed in the Section J report. 90Conditions 63 iii and iv require the creation and registration of restrictions and positive covenants on the title of the land that require, for a 10 year period from the date an Occupation Certificate is issued, the dwellings/units be used for the purposes of affordable housing and the accommodation is managed by a registered community housing provider. Secondly, it is proposed to limit the number of bedrooms and the extent of any building works within those rooms. The wording of that condition relates to creation of the restriction on the title of each dwelling. 91The applicant opposes the conditions and says that the boarding house will be privately managed and that there is no requirement within either of the SEPPARHs to limit the management or fee structure. 92The first condition is similar to ones that I considered in Revelop Projects Pty Ltd v Parramatta City Council [2013] NSWLEC 1029 where at [49-50] I stated: 49 The conditions sought to be imposed by the council that require registration of a restrictive covenant have been the subject of review by this Court. Lloyd J in MacDonald v Mosman Municipal Council [1999] NSWLEC 215, supports Mr Arch's proposition that it is unnecessary and inappropriate to impose a condition requiring a restrictive covenant in some circumstances. I agree that the provisions of the LEP are such that any change of use of the building would require consent and therefore do not consider the restrictive covenant provisions contained in conditions 99 or 127 are necessary however, it is appropraite to specify the use of the building and its purpose as a boarding house. 50 I also agree that it is a matter for the applicant whether it exercises its ability to obtain land tax exemptions and therefore link tariffs to those specific fees. Whilst it is important to ensure that the aims of SEPPARH are met, the policy does not contain any provisions in relation to boarding houses that limit tariffs whereas there are requirements that require infill development and supporting accommodation to provide affordable housing and the registration of a covenant to ensure compliance. In this case, market forces will determine the tariffs paid by lodgers and I do not consider that it is necessary that these tariffs should be linked to those set by the Office of State Revenue when assessing land tax. 93There is no matter raised by the council that would distinguish this case from that considered in Revelop and accordingly condition 63 iii should be deleted. 94As no strata subdivision of the building is proposed, it would not be possible to implement condition iv and I note that the provisions of SEPPARH prohibit the strata title or community title subdivision of boarding houses (clause 52). For that reason, the fact that the plans show the approved layout and therefore the number of rooms to be contained within the boarding house and, because the use is not commercial premises, consent would be required to alter the approved layout, condition 63 iv should be deleted and condition 13 amended. 95Condition 73 relates to the adoption of a POM and Occupancy Agreement. The original condition proposed by the council adopted the documents prepared by the applicant and lodged with the application. These were appendices to Exhibit 8. As a result of Dr Stubbs' evidence, the council seeks to add a number of requirements to these documents. These include provision of information regarding the availability of services and transport; requiring the boarding house manager to have relevant (not specified) qualifications and experience; designated smoking areas and rooms, holding monthly house meetings; adoption of a process for resolution and monitoring of potential conflicts; grievance procedures; noise monitoring and the requirement that the council approves any changes to the POM and Occupancy Agreement. It also requires the occupancy agreement comply with the Boarding House Act 2012 and until such time as relevant sections are in force, use the Draft Model Boarding House Occupancy Agreement that was lodged. 96Ms Ryan says the changes are not reasonable or required. The applicant did however agree that the plans and occupancy agreement should be prepared to reflect the requirements of the Boarding House Act 2012. 97I accept, based on the evidence, that the POM as lodged does not contain sufficient provisions in relation to the management of resident disputes and ensure that residents are provided with fair and reasonable dispute resolution processes. These should be incorporated in the plan. Similarly, the issue of smoking areas should be clarified. I do not consider that it is necessary to establish qualifications or experience levels for the boarding house manager, that is a matter for the owner of the premises to ensure that the manager can operate the premises in accordance with all consent conditions. For that reason, it is appropriate to amend condition 73. 98Condition 77 required a caretaker to be present onsite at all times 24 hours per day 7 days per week. The applicant proposes an alternate condition that a caretaker/relief caretaker is present on site at all times. I consider, given the size of the boarding house that a resident manager should be in place with a relief person available. Those persons should be on-site and be available to immediately address any issue that may arise.

Conclusion 99Having found, based on the evidence available and considering those matters specified in s 79C of the EPA Act, that the development is permissible with consent as an innominate use in the Residential 2(a3) zone under the provisions of LEP 2005, that it is consistent with the aims of that plan and the objectives of the zone, and the site is suitable for use as a boarding house, consent should be granted subject to conditions that reflect my considerations outline above. 100The Orders of the Court are: (1)The appeal is upheld. (2)Development Application 1373/2011/HB for demolition of existing structures and construction of a two storey boarding house containing 33 rooms at Nos. 93-95 Baker Street, Carlingford is approved subject to the conditions contained in Annexure 'A'. (3)The exhibits, other than exhibits B C and T, may be returned. Sue Morris Commissioner of the Court ANNEXURE A

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 April 2013