Walton v Blacktown City Council [2011] NSWLEC 1008 | Case summary

Judgment (8 paragraphs)

[1]

1This is an appeal against the refusal by Blacktown City Council (the council) of a development application (DA10-702) under the Environmental Planning and Assessment Act 1979 (EPA Act) to use an existing dwelling at 16 Nicholas Street, Blacktown (the site) as a 10 bedroom group home.

[2]

Site and its locality 2The site is located on the corner of Nicholas and Joseph Streets. It is irregular in shape with a total area of 607sqm. The site is developed with a two story brick dwelling with 6 bedrooms, two kitchens, two bathrooms, common areas and a garage for four cars. An internal spiral staircase provides access between the ground and first floor. There is also an external timber stair, which provides access from the first floor to the garden. A loft area for storage purposes is located above the garage and there is an access stair from the loft to the laundry at ground level. 3A complying development certificate (CDC) has been issued on 8 October 2009 to convert the upstairs kitchen and part of the common areas into four bedrooms. The works proposed in the CDC have not yet been carried out. Mr Seymour, for the applicant, submits that council has issues with the CDC as it includes an internal bedroom, which has no access to light or air. 4To the west and south the site adjoins detached dwellings. The surrounding development is residential comprising one and two storey detached dwellings of different construction, materials and styles, predominantly built in the 1960s and 70s, with some later dwellings. Further to the east is Blacktown South Primary School.

Evidence 13The Court visited the site and heard evidence from a number of objectors and supporters of the proposal. The principle concern of the objectors was that the existing unauthorised operation of the group home adversely impacted on their amenity. The objectors provided examples of incidents where noise and anti social behaviour had occurred and occasions where the police and ambulance had been called. They were concerned about the number and mix of patrons, in particular that children shared the facility with unrelated adults, that there was no on site manager or proper management plan and that the facility posed a fire risk. They stated that the group home did not have a formal arrangement with a service provider and that in some instances it was used as short term accommodation for people who are not disadvantaged, including backpackers. The adjoining neighbour at 14 Nicholas Street was concerned about incidents where items and people had entered his property and altercations with residents had occurred. 14The objectors recognised the need for such a facility but considered the size, number of occupants and poor management was unacceptable. They had no confidence, given the continued unauthorised operation of the group home after its refusal by the Court in 2009 that the owner would abide by any further decision of the Court. 15The supporters were previous and current occupants of the facility who stated that it had provided accommodation at times of need and was an important community facility that was well managed. A supporter of the proposal stated that she currently managed the group home and would continue to do so if it were approved. She indicated that she was not paid and did not have a formal employment or tenancy arrangement with the applicant. 16Ms B Castor, social planner and Mr M Wynn-Jones, BCA consultant provided evidence for council. No social planning evidence was provided for the applicant but Mr J Koloadin provided evidence on the BCA issues. Letters from various community housing providers were tendered (exhibit B) which indicate that they refer clients to the facilities operated by the applicant. It also included letters of appreciation and support for the facilities to continue to provide accommodation. Social impacts 17Ms Castor acknowledges that there is a need for group homes in the Blacktown area and the wider community. She accepts that the house and its location is appropriate. However, she is concerned about the social impacts from the number of people that can be accommodated (at least 18) in the proposal and the adequacy of the PoM. She states that: ...an efficiently operated Group Home can be accommodated on the subject site provided it is professionally managed and that the needs of all stakeholders are at least considered and attempts made to satisfy them. A proper Plan of Management and an on site caretaker or manager may go some way in assisting to make this valuable type of development a reality, however, in its current form, the development represents an unacceptable intensification of the use of the site. At least 18 socially disadvantaged persons living temporarily in the proposed Group Home is not in keeping with the intention of SEPP (Affordable Housing) 2009. 18In Ms Castor's opinion, the maximum number of occupants should be limited to 12. She provided guidelines for the contents of a PoM (Exhibit 5) and stated that if the group home were effectively managed by an on site caretaker in accordance with a proper PoM the social impacts would be acceptable. 19Ms Berglund, for the applicant, submits that group homes provide a much needed community facility and that there is no expert evidence that the location of the proposal is inappropriate for its use as a group home. The aims of SEPP 2009 encourage group homes to be located in a residential context and the wider public good outweighs any concerns of the residents, which are based on fear and uncertainty and are not reasonable. 20Ms Berglund submits that under cl 46(1)(b) of SEPP 2009 the Court cannot impose a condition on any consent granted for a group home only for the purpose that the development is a group home. Her primary submission is that a condition cannot therefore be imposed requiring a PoM or a caretaker, as this would not normally be imposed on a dwelling. However, her secondary submission is that the applicant would accept a deferred commencement condition that requires a PoM to be prepared. Further, the applicant would accept the requirement for a caretaker, but not full time on site. 21Mr Seymour submits that the unauthorised operation of the group home has demonstrated that it has unacceptable social impacts. His primary submission is that the application should fail as there is inadequate information to be satisfied that these impacts will be mitigated given that there is no effective PoM or a caretaker proposed on the premises. Mr Seymour submits that a deferred commencement condition is inappropriate as a PoM is an essential part of the assessment of the application that cannot be deferred to a later stage. However, his secondary submission is that cl 46(1)(b) of SEPP 2009 does not restrict the imposition of conditions requiring a PoM or a caretaker as such conditions are not only being imposed because it is a group home but are commonly placed on different types of residential uses. He submits that any approval should include these requirements. Findings 22Under SEPP 2009 development consent for a group home is required. The applicant has lodged a development application to use the existing dwelling as a group home. It is council's refusal of the development application that the applicant has appealed against and which must be determined by the Court. 23The matters to be considered in determining a development application are set out in s79C of the EPA Act. The matters of relevance to the application include: (1) (a) the provisions of: (i) any environmental planning instrument, and ......... (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and ....... (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, ......... (e) the public interest. 24The relevant environmental planning instrument is SEPP 2009. Clause 8 provides that if there is any inconsistency with the policy and any other environmental planning instrument the policy will prevail to the extent of the inconsistency. Division 7 of SEPP 2009 provides no criteria for the assessment of a group home and the parties agree that the social impacts of the proposal are a relevant consideration under s 79C(1)(b). 25The group home has operated for a number of years without consent. Preston CJ in Jonah Pty Ltd v Pittwater Council (2006) LGERA 408 discusses the relevance of an unlawful past use. At [35-38] His Honour states: 35 Hence, in undertaking the merit determination of whether to grant or modify a development consent, it is irrelevant to enquire as to who is the current owner/operator, or who might be the future owner/operator, or whether the present owner/operator has in the past acted or used the land unlawfully, or whether the future owner/operator is likely in the future to act or carry out any approved use unlawfully. ...... 37 The above conclusion that mere unlawfulness of past use is not a relevant factor does not mean, however that past use - without any consideration of its unlawfulness cannot ever be relevant. 38 For instance, past conduct (regardless of whether it is unlawful) may have given rise to unacceptable impacts, such as unacceptable acoustic impacts on adjoining properties. The experience of impacts of the past use could be relevant in evaluating, first, the likely impacts of a prospective use for which consent is sought of the same or similar character, extent, intensity and other features as the past use, secondly, the acceptability of the likely impacts and thirdly, if likely impacts are considered to be unacceptable, the appropriate measures that ought to be adopted to mitigate the likely impacts to an acceptable level. Past use would, therefore be of relevance but it is for proper planning reasons, not because the past use happened to be unlawful. The unlawfulness of the past use is not relevant. 26Consistent with the decision of Preston CJ in Jonah , the illegal actions of past, present and future owners/operators are an irrelevant enquiry in the consideration of the merits of the application. It must be assumed that an owner/operator will comply with the consent and its conditions. 27The past unauthorised use of the site, as a group home, however, is a relevant consideration to assist in the assessment of the likely impacts of the proposal and how these can be mitigated. I acknowledge the concerns of the residents and the submissions of council that a proposal for a group home that is of similar character, extent or intensity to the previous unauthorised use would be unacceptable. The application seeks approval to intensify the present use of the site through the increased room numbers (approved under the CDC) and the number of potential occupants and thereby deceasing the communal areas and facilities available to residents. 28Supporters of the proposal provided evidence of the need for group homes and that the existing facility can operate with minimal impact. However, the evidence of the objectors is that the existing operation of the group home has adversely affected their amenity. No police reports were submitted into evidence; however, the statements of the residents in relation to the existing operation of the group home were largely unchallenged. 29Lloyd J in New Century Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154 outlined the principles to be applied to the views of residents on amenity or social impacts. At [62] and [63] he states: 62 A fear or concern without rational or justified foundation is not a matter which, by itself, can be considered as an amenity or social impact pursuant to s 79C(1) of the EP&A Act ( Newton v Wyong Shire Council , NSWLEC, McClelland J, 6 September 1983, unreported, Jarasius v Forestry Commission of New South Wales (1990) 71 LGRA 79 at 93 per Hemmings J; Perry Properties Pty Ltd v Ashfield Municipal Council [2000] NSWLEC 188; (2000) 110 LGERA 345 at 350 per Cowdroy J). Where there is no evidence to support a rational fear it will be irrelevant that members of the community may have modified their behaviour arising from such an unjustified fear (Dixon at [71]). 63 It follows that in forming an opinion on the probable impact of a proposed development on the amenity of an area, tangible or otherwise, a court would prefer views from residents which are based upon specific, concrete, likely effects of the proposed development. This is consistent with the statement of Mason P in Fairfield City Council v Liu at [2] that "... the demonstrable social effect of a particular ...use is relevant under s 90(1)(d) [now section s 79C]" (see also Dixon at [48]). 30I do not accept Ms Berglund's submission that the residents concerns are an unreasonable fear and should be given little weight. Rather, the evidence of the residents is factual and based on the existing operation of the group home and demonstrates that unless it is properly managed it has the potential for adverse social impacts. 31The evidence of the objectors is reinforced by Ms Castor who provided the only expert evidence on the likely social impacts of the proposal. In her opinion, unless the facility is managed appropriately it has the potential for unacceptable social impacts that may adversely impact on the amenity of neighbours. She concluded that the site is suitable for a group home but not of the size proposed nor in the absence of a proper management regime. She stated that a group home catering for up to 12 occupants would be acceptable provided there is an appropriate PoM that is implemented through a caretaker. In the absence of any expert evidence to the contrary, I accept Ms Castor's evidence. 32If I were to accept Ms Berglund's submission that in accordance with cl 46 (1)(b) a condition requiring a PoM and a caretaker cannot be imposed then the application must fail as the evidence is that the proposal, absent a PoM and a caretaker, would have an unacceptable impact. However, such a condition is imposed not because the proposal is a 'group home' as defined, but rather because of the number of unrelated people that can be accommodated within the facility (see Waugh Hotel Management Pty Ltd v Marrickville Council [2009] NSWCA 390). Accommodating even 12 unrelated people as a single household with shared kitchen, bathroom, laundry or communal facilities has the potential for conflict and unacceptable internal and external social impacts. To mitigate this impact there needs to be clear guidelines as to the rights and responsibilities of the occupants and the operator in the form of a PoM and an on site manager or caretaker. 33A PoM, albeit a deficient one, was submitted as part of the application and the applicant has filed conditions, which include a deferred commencement condition requiring a PoM. I note that the report to council also recommended a deferred commencement condition requiring a PoM. While the consent should not operate before a satisfactory PoM is approved it is appropriate for such a condition to be imposed given the evidence of Ms Castor and the acceptance of the condition by the applicant. The PoM should include the items proposed by Ms Castor (Exhibit 5) and a procedure to deal with complaints of neighbours, including a 24 hour contact phone number for the on site manager and owner. The PoM should not be amended without the prior consent of council. 34The applicant has also accepted the requirement for a caretaker, although only during the day when the development is in operation. Whereas Ms Castor recommends that a caretaker reside on the premises. In the absence of expert evidence to the contrary, I accept Ms Castor's position. 35I therefore find that consent may be granted for a group home with a maximum of 12 residents, including a live in caretaker, which operates in accordance with an approved PoM. Building Code of Australia 36The key disagreement between Mr Wynn-Jones and Mr Koloadin is the appropriate classification of a group home under Part A3 of the BCA and the upgrading that may be required. 37Under Part A3.2 (Classification) of the BCA residential buildings are relevantly classified as follows: (a) Class 1a - a single dwelling being - (i) a detached house; or .... (b) Class 1b - a boarding houses, guest house, hostel or the like - (i) with a total floor area of all walls not exceeding 300sqm measured over the enclosing walls of the Class 1b; and (ii) in which not more than 12 persons would ordinarily be resident, which is not located above or below another dwelling or another Class of building other than a private garage. Class 3 - a residential building, other than a building of Class 1 or 2, which is a common place of long term or transient living for a number of unrelated persons, including - (a) a boarding house, guest house, hostel, lodging - house or back packers accommodation; or .... (d) accommodation for the aged, children or people with disabilities. .... 38Depending upon the classification the greater the fire safety risk and the more stringent fire safety requirements. Mr Wynn-Jones and Mr Koloadin agree that the BCA does not use the term 'group home'. Mr Koloadin considers that the residential part of the building would be classified as Class 1(a) under the BCA. Whereas Mr Wynn-Jones considers that it is Class 3 under the BCA. 39Mr Koloadin based his classification principally on the definition of 'group home' adopted from the Standard LEP in SEPP 2009 and BLEP, which provides that a group home (whether permanent or transient) means a dwelling. A dwelling is defined as: 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. 40A dwelling house is defined as: Dwelling house means a building containing only one dwelling 41Mr Koloadin concludes that as a 'group home' is a dwelling under these planning instruments it would also be classified as Class 1a-a single dwelling under the BCA. There would therefore be no change of use if an existing dwelling were to be used as a group home under cl 93 of the Environmental Planning and Assessment Act Regulation 2000 (the Regulations). 42Mr Koloadin notes that under Part A3 of the BCA a Class 3 building includes a 'boarding house' and a 'hostel'. However, the definition of 'boarding house in the Standard LEP expressly excludes a 'group home'. Mr Koloadin did not explain why the proposal would not be a 'hostel'. 43Mr Wynn-Jones states that the classification of a use for fire safety purposes is determined by the BCA. The planning definitions are relevant from a planning perspective and are of assistance in interpreting the BCA, however, the nature of the use and the fire risk it poses needs to be understood to determine the appropriate classification under the BCA. 44Mr Wynn-Jones has assumed that the existing building is approved as a Class 1a-single dwelling with a floor area of about 315sqm and that the application proposes a group home which contains 10 bedrooms that could accommodate more than 12 unrelated persons. Each proposed bedroom will be occupied 'by one or joint owner, lessee, tenant or other occupier', which is defined as a 'sole occupancy unit' under the BCA. This will result in a change of building classification from Class 1a to Class 3. The proposed change of building use requires council 'to take into consideration whether the fire protection and structural capacity of the building will be appropriate to the building's proposed use' pursuant to cl 93 of the Regulations. 45Mr Wynn-Jones states that a single dwelling is a place where a family unit lives generally on a long term basis, it has the characteristics of permanence, that people know each other and is of small scale, therefore the fire risk is reduced. The characteristics of the proposal are of a residential building where a number of unrelated people may live for short or long periods of time. The bedrooms have locks and are used as 'sole occupancy units'. The fire risks are therefore greater. In his opinion, the characteristics of the use for the purpose of fire safety are those of a Class 3 building. 46Mr Wynn-Jones referred to the ABCB Guide to the BCA (BCA Guide) to support his classification of the building as Class 3. The Guide provides detail on the nature of Class 1a, Class 1b and Class 3 uses. 47In Mr Wynn-Jones' opinion the classification of the building as Class 3 and the requirements of the BCA should be used to determine the fire upgrading that may reasonably be required to satisfy cl 93 of the Regulations. Mr Wynn-Jones reviewed the suitability of the upgrading required by council and states that subject to some amendments it is reasonable. These works include fire separation of the internal and external walls, upgrading of the building egress system and construction of exits, access and facilities for people with a disability, and emergency lighting and signs. 48Mr Koloadin did not agree on the extent of works proposed if the building were to be classified as Class 3, however, he had not considered what works would be appropriate as he did not accept its classification as a Class 3 building. The applicant has subsequently provided alternate conditions, which include works required for a Class 3 building, but these differ from those proposed by council and no reason for the difference is given. 49Mr Wynn-Jones states that the fire risk increases as the scale of a proposal increases which is reflected in the different classification of a 'boarding house' and 'hostel' as Class 1b and Class 3 depending on size and occupancy. He acknowledges that if the proposal were limited to 300sqm with no more than 12 people it would be classified as a Class 1b building, which would require significantly less upgrading works to satisfy cl 93. Findings 50I accept Mr Wynn-Jones evidence that the classification of a building for the purpose of fire safety cannot be based solely on the definitions in planning instruments. The BCA is a national document whereas planning instruments differ from state to state and from different local government areas. The definitions of 'permanent group home' and 'transitional group home' in the Standard Instrument mean a dwelling that meets certain criteria, however, this does not automatically result in a Class 1(a) classification for the purposes of the BCA. 51A 'dwelling' and a 'group home' are separately defined in the Standard Instrument' and SEPP 2009 requires development consent for a group home. If the nature of the uses were identical there would not be separate definitions nor would consent be required. Ms Berglund accepts that a group home is operationally not the same use as a dwelling. 52The term 'group home' is not specifically listed in Part A3 in the BCA, it is therefore necessary to understand the nature of the use and its likely fire risk to determine its appropriate classification. 53Part A3 of the BCA provides a number of different classifications for residential buildings, including: Class 3 - a residential building, other than a building of Class 1 or 2, which is a common place of long term or transient living for a number of unrelated persons, including - (a) a boarding house, guest house, hostel, lodging-house or back packers accommodation; or .... (d) accommodation for the aged, children or people with disabilities. .... 54A number of uses are listed in Class 3 but the use of the word 'including' means that the list is not exhaustive. I do not accept Mr Koloadin's evidence that if the proposal does not fit into one of the listed uses then it does not fit within that classification. Other uses with similar characteristics as those listed would also fit into the classification. Further, for the purpose of fire safety, the proposed use which is a common place of long term or transient living for a number of unrelated persons has more similarity to that of a 'boarding house' or 'hostel' rather than to a dwelling. Nor do I accept that the exclusion of a 'group home' from the definition of 'boarding house' in the Standard Instrument automatically means that the fire risks posed by a similar use would be any different. 55The Guide provides detail on the nature of Class 1a, Class 1b and Class 3 uses. It states that: Class 3 buildings provide accommodation for unrelated people. The length of stay is unimportant. Some exceptions to this classification include: certain bed and breakfast accommodation, boarding houses, guest houses, hostels or lodgings and the like which fall within the concession provided for Class 1b buildings. 56The reason for the concession for Class 1b which also provide accommodation for unrelated people is that: ..the smaller the size of the building and its lower number of occupants represents reduced fire risk. 57Further the Guide states that: ..any size building can be classified as Class 1 or Class 2 if it is used to house any number of unrelated people who jointly own or rent it, or share it on a none rental basis with an owner or a tenant. 58Clearly the group home as proposed in the application is a 'residential building which is a common place of long term or transient living for a number of unrelated persons' and it is not a Class 1 or 2 building. 59The proposed use does not fall into the concession for a Class 1b building due to its size and occupancy. Nor do the occupants jointly rent or share on a non rental basis with the owner or a tenant, as would be the case for a shared or student household. Rather, they (or a community housing provider) pay rent to the owner who does not reside at the premises. 60Ms Berglund referred to the decision in Walton where Moore C and Taylor C examined the question of BCA classification for a proposed transitional group home. At [42] and [43] the Commissioners state: 42 In our view, the premises satisfy the elements contained in the definition of transitional group home and that the premises will necessarily be a dwelling for the purposes of the Act and Regulation. 43 We conclude, therefore, that because the premises do satisfy both the central prerequisites, by a combination of physical compliance and statutory deeming, the premises are a Class 1a building under the BCA. Consequently, the issues of building upgrading to convert these premises to comply with the requirements for Class 3 buildings under the BCA do not apply. 61I have accepted Mr Wynn-Jones' evidence that the proposal is appropriately classified as Class 3 under the BCA. In accepting this classification, I have reached a different conclusion to that in Walton. However, my decision is based on the evidence and the facts that were presented before me. 62As I have concluded that the building's proposed use is classified as Class 3, it therefore follows that it involves a change of building use and that s 93 of the Regulations is a relevant consideration. 63Under s 4 of the EPA Act 'change of building use' is defined as "change of building use" means a change of use of a building from a use that the Building Code of Australia recognises as appropriate to one class of building to a use that the Building Code of Australia recognises as appropriate to a different class of building. 64Section 93 of the Regulations is prescribed under s 79C(1)(a)(iv) of the Act and is a relevant matter for consideration in determining the development application. Section 93 relevantly provides that: (1) This clause applies to a development application for a change of building use for an existing building where the applicant does not seek the rebuilding, alteration, enlargement or extension of a building. (2) In determining the development application, the consent authority is to take into consideration whether the fire protection and structural capacity of the building will be appropriate to the building's proposed use. ...... 65Mr Wynn-Jones has commented on the works that are required to ensure the fire protection and structural capacity of the building will be appropriate to the building's proposed use. Council has incorporated the works required for a Class 3 building into proposed conditions of consent. The applicant has provided alternate conditions to those proposed by council but no evidence has been provided to justify why the works should not be required. I therefore accept that the conditions proposed by council should be imposed if the proposal in its current form were to be approved. 66If the size of the use is limited to 12 people and 300sqm the proposal could be classified as a Class 1b, which would require less stringent fire upgrade works. Although no detailed evidence was provided as to the details of the works that would be required, I note that the Guide states that: Apart from their use, the primary difference between Class 1a and Class 1b buildings is that the latter is required to have a greater number of smoke detectors. 67Given that the uncontested evidence of Ms Castor is that the proposal should be limited to 12 people, including a caretaker, it is also appropriate to limit the area used by the group home to 300sqm and it would therefore be classified as a Class 1b building. A condition to this effect should be imposed.

Conclusion 68SEPP 2009 requires consent for a group home but provides no criteria for assessment other than Clause 46(1)(a) of SEPP 2009, which requires that consent cannot be refused for a development for the purpose of a group home unless an assessment of the need for the group home has been made. The agreed position of the parties is that there is a community need for group homes in the Blacktown area. However, this does not mean that any application that proposes a group home, even if there is a need, must be approved. Nor does it mean that the social impacts of the proposal are not a relevant consideration under s79C. 69For the reasons I have discussed above, the proposal in its current form is likely to have an unacceptable social impact and does not warrant approval. However, the uncontested expert evidence before me is that a group home which provides accommodation for no more than 12 people, including a caretaker, and that is operated in accordance with an approved PoM is likely to have an acceptable impact. Further, if the area used by the group home is limited to 300sqm it would be classified as Class 1b under the BCA. I have concluded that these requirements may be imposed as conditions as they are required to mitigate the impacts of the number of unrelated people that can be accommodated within the facility. They are not imposed only for the reason that the development is for the purpose of a group home and they therefore do not offend cl 46(1)(b) of SEPP 2009. 70The additional rooms approved under the CDC are not required to accommodate 12 people and I have deleted the reference to the drawing from the approval. The applicant may act on the CDC, subject to any further action that council may take, but the works proposed do not form part of this application. I have also made other amendments to the conditions which include the requirement that the group home not provide tourist or backpacker accommodation.

Walton v Blacktown City Council

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Court

Decision date

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Judgment (8 paragraphs)

Parties

Cases Cited (5)

Cited By (3)