Town planning ­ Development application ­ Change of use from "holiday village/resort to "extended stay residential" or "multiple dwelling" ­ Preliminary issue ­ Whether the proposed use is "multiple dwelling" or "extended stay residential" for the purposes of applying the relevant town planning scheme

City of Joondalup District Planning Scheme No 2, Sch 1

Residential Design Codes of Western Australia (2002), cl 2.2

State Administrative Tribunal Act 2004 (WA), s 60(2)

Town Planning and Development Act 1928 (WA), s 8A, s 8A(1)

1. Preliminary issue answered ­ the proposed use is "multiple dwelling" for the purpose of applying the City of Joondalup District Planning Scheme No. 2.

Aedlik Nominees Pty Ltd v District Council of Kingscote & Emu Bay Holiday Homes [1997] SAERDC 393

Barrick Pty Ltd v The Barossa Council [2004] SAERDC 103

Derring Lane Pty Ltd v Port Phillip City Council (No 2) [1999] VSC 269

The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304

1 The owners of Strata Plan 18449 applied to the State Administrative Tribunal for review of a decision of the City of Joondalup refusing approval for a change of use at No 1 Padbury Circle, Sorrento, known as Sorrento Beach Resort.

2 The respondent previously raised two preliminary issues which were determined by the Tribunal in The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304.

3 A further preliminary issue was raised by the applicant, which was formulated as follows:

"Whether the use proposed to be made of the land the subject of this application is 'multiple dwelling' or 'extended stay residential' for the purposes of applying the respondent's District Planning Scheme No 2."

4 The Tribunal determined that the form and nature of the proposed use was correctly categorised as "multiple dwelling" and therefore the application was incapable of approval. The application for review was dismissed and the decision of the respondent reaffirmed.

5 The owners of Strata Plan 18449 (applicant) made an application to the City of Joondalup (respondent) for approval to change the use of Lot 25 (No 1) Padbury Circle, Sorrento (subject land), known as Sorrento Beach Resort, from "holiday village/resort" to "multiple dwelling". Prior to determination of that application by the respondent, the applicant amended its position so as to seek approval of the respondent to change the use of the subject land from "holiday village/resort" to "extended stay residential'. The proposed use contemplates occupancy of the buildings on the land for a period not exceeding two years.

6 Notwithstanding the applicant's designation of the use, the respondent at its meeting of 15 March 2005 determined that the proposed change of use should be categorised as "multiple dwelling" for the purposes of the City of Joondalup District Planning Scheme No 2 (DPS 2). The respondent then resolved to refuse the application for the following reasons:

"(a) It would result in the development being classified as Multiple Dwellings under District Planning Scheme No. 2 with a resultant proposed density of R100 which does not comply with the density of R20 designated under District Planning Scheme No. 2.

(b) Approval of the development to a R100 density would be contrary to orderly and proper [planning] for the locality considering the R20 density of the site."

7 The applicant, on 28 April 2005, made application under s 8A(1) of the Town Planning and Development Act 1928 (WA) (the TPD Act) to have the decision reviewed.

8 The respondent raised two preliminary issues which where considered and determined by the Tribunal in The Owners of Strata Plan 18449 and City of Joondalup [2005] WASAT 304. The issues before the Tribunal were:

1. Whether on the proper construction of s 8A of the TPD Act, the Tribunal has jurisdiction to categorise the use proposed in a planning application which has been refused or conditionally approved by the responsible authority in circumstances where the responsible authority has categorised the proposed use.

2. Whether development of land coded "R30" or less for the purposes of "multiple dwellings" "conform[s] to" the Residential Design Codes of Western Australia 2002 (Codes).

9 The Tribunal determined that the issues were to be answered "yes" and "no", respectively.

10 The applicant has since filed a "Statement of the Preliminary Issues" setting out a further preliminary issue to be determined by the Tribunal, being:

"Whether the use proposed to be made of the land the subject of this application is 'multiple dwelling' or 'extended stay residential' for the purposes of applying the Respondent's District Planning Scheme No 2."

11 The preliminary issue was listed for determination entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).

12 The respondent submits that the proposed use is properly categorised as "multiple dwelling" for the purposes of DPS 2. In support of this contention, the respondent relies on the definition of "multiple dwelling" in Sch 1 of DPS 2 which has the same meaning given to it in the Codes, being:

"A dwelling in a group of more than one dwelling on a lot where any part of a dwelling is vertically above part of any other but does not include a Grouped Dwelling."

13 That definition depends on the meaning of "dwelling" which is defined in cl 2.2 of the Codes as:

"A building or portion of a building being used, adapted, or designed or intended to be used for the purpose of human habitation on a permanent basis by a single person, a single family, or no more than six persons who do not comprise a single family."

14 The key words, in the context of this matter, are "habitation on a permanent basis". The respondent submits that a fixed period should be regarded as being a "permanent basis" if the period is of sufficient length to evidence an intention that the place is the occupant's permanent place of residence, and not merely holiday or temporary accommodation with the person returning later to his or her permanent abode. The respondent maintains that a period of up to two years is of such a length and is consistent with that intention.

15 Further, the respondent submits that the description of the proposed use, "extended stay residential", emphasises that what is proposed is a residential use of the existing development and that the units are proposed to be used as an occupier's residence or permanent and usual place of abode and therefore for the purpose of "human habitation on a permanent basis".

16 The applicant contends that the use is to be properly categorised as "extended stay residential". The applicant argues that its nominated use category focuses on the nature of the use rather than the built form. Conversely, the term "multiple dwelling", in its prima facie form refers to the built form configuration of the development, rather than any use to which that built form may be put.

17 The applicant acknowledges that there is a derivative reference in the definition of the term "dwelling" to the purpose of the use, namely "human habitation on a permanent basis", which the applicant contends is akin to the concept of "principal place of residence". The applicant submits that a temporal cap of two years, whilst permitting a place to be a place of residence, operates in a manner analogous to any other short stay accommodation for a specified and finite period and has the effect of discouraging, if not necessarily preventing, such a dwelling being a principal place of residence on a permanent basis.

18 The applicant asserts that any subjective selection of a period of time to determine the distinction between "temporary" and "permanent" will be arbitrary and that a period of two years is not consistent with the notion of permanent occupation.

Respondent's reply to applicant's submissions

19 The respondent contends that there is no authority to support the applicant's proposition that "a period of two years is not consistent with a notion of permanent occupation". However, there has been a number of case authorities in which periods of three months or less have been considered to be consistent with holiday or tourist accommodation: Barrick Pty Ltd v The Barossa Council [2004] SAERDC 103; Aedlik Nominees Pty Ltd v District Council of Kingscote & Emu Bay Holiday Homes [1997] SAERDC 393. The respondent submits that this Tribunal should adopt a similar approach as the Environmental, Resources and Development Court of South Australia (ER&D Court of SA) decisions and equate a "dwelling" with a place of residence. The respondent argues that "a period of up to 2 years" is consistent with a person's place of residence and therefore such a period cannot be described "short stay" accommodation nor as holiday or temporary accommodation.

20 An analysis of what is intent by "extended stay residential" reveals that the form and characteristics of the proposed use are in fact the same as that defined under the term "multiple dwelling". In essence what is being proposed is the use of buildings, on the subject land, for residential purposes for a period of up to two years. The built form of the development is configured so that parts of the accommodation units are vertically above others.

21 In Derring Lane Pty Ltd v Port Phillip City Council (No 2) [1999] VSC 269 consideration was given to the meaning of "residential" in a planning context. At [12], Balmford J states the meaning of "residential" as defined in the Second Edition of the Oxford English Dictionary:

"As to 'residential', the relevant meaning given in the Second Edition of the Oxford English Dictionary ('the Dictionary') is:

Serving or used as a residence; in which one resides.

That definition depends on the meaning of 'residence' and 'reside'. The relevant meanings of 'residence' in the Dictionary are:

To have one's usual dwelling-place or abode; to reside.

The circumstance or fact or having one's permanent or usual abode in or at a certain place; the fact of residing or being resident.

The place where one resides; one's dwelling-place; the abode of a person (especially one of some rank or distinction).

A dwelling, abode, house, especially one of a superior kind; a mansion.

The relevant meaning of 'reside' in the Dictionary is:

To dwell permanently or for a considerable time, to have one's settled or usual abode, to live in or at a particular place."

22 In considering the above definitions and relevant case authorities at [13-15] Balmford J concluded that:

"the phrase 'residential building' must be taken to refer to a building constructed for the purpose of people dwelling there permanently or for a considerable period of time, or having in that building their settled or usual abode."

23 Similarly, in this instance "residential" must be taken to mean the use of a building for one's usual place of abode on a permanent basis or for a considerable time. Therefore, the term "extended stay residential", is in itself by definition promoting the use of the buildings as the occupier's usual place of abode for a considerable period of time. This is further reinforced by the temporal cap of up two years, which is considerably longer than some residential leases offered in Western Australia for buildings categorised as "single house", "grouped dwelling" and "multiple dwelling". The Tribunal does not agree with the applicant's assertion that the temporal cap will have the effect of discouraging, if not preventing, the use of the buildings as a principal place of residence on a permanent basis. On the contrary, a period of up to two years is characteristically akin to habitation on a permanent basis.

24 On this preliminary issue, the Tribunal finds that the form and nature of the proposed use is correctly categorised as "multiple dwelling". In The Owners of Strata Plan 18449 and City of Joondalup the Tribunal found at [62] and [63]:

"62 In consequence, if the proposed use were categorised as 'multiple dwellings' for the purpose of DPS 2, the development would not 'conform to' the provisions of the Codes. The answer to the second preliminary issue identified at [11] above is 'no'.

63 The result is that if the Tribunal were, like the City, to categorise the proposed use as 'multiple dwellings', approval of the application is not within the discretion of the decision-maker under DPS 2 and the Tribunal would be obliged to decline to consider the strata company's application for review of the City's refusal of planning approval. If that were the case, the application to the Tribunal would be dismissed."

25 Given this finding, the application is incapable of approval and therefore the Tribunal makes the following orders:

1. The preliminary issue identified in paragraph 10 of the Tribunal's reasons for decision dated 26 April 2006 is answered as follows:

i. The use proposed to be made of the land the subject of this application is "multiple dwelling" for the purpose of applying the City of Joondalup District Planning Scheme No 2.

3. The decision of the respondent to refuse planning approval for a change of use at Lot 25(No 1) Padbury Circle, Sorrento, is affirmed.

I certify that this and the preceding [25] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MS M CONNOR, MEMBER