Wollondilly Shire Council v 820 Cawdor Road Pty Ltd

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. 20The 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 ... 21In 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. 22It 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. 23I 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. 24In 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". 25The 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. 26It follows that Mr Garton is occupying or using the building as a separate domicile. The building is thus a "dwelling" for the purposes of the relevant definition. The subject dwelling, together with the two approved dwellings on the land, means that there are three dwellings on the land within the meaning of "multi dwelling housing", which is prohibited within the relevant zone. 27Mr Rigg also relies upon the Residential Tenancies Act 2010. Section 9 of that Act deems any agreement or arrangement under which a person is given the right to occupy premises for the purpose of residence in return for carrying out work in connection with the premise to be a residential tenancy agreement. Section 120 provides for a penalty if a person enters residential premises for the purpose of taking possession unless the person is acting in accordance with a warrant arising out of an order for possession of the Consumer, Trader and Tenancy Tribunal, or warrant arising out of a judgment or order of a court, or the tenant has abandoned the premises or given vacant possession of the premises. 28Section 109(1), however, states that if residential premises become wholly or partially uninhabitable or cease to be lawfully used as a residence, the landlord (or the tenant) may give the other party a termination notice. 29Mr Rigg next relies upon cl 10(1) of State Environmental Planning Policy No 4 - Development without Consent and Miscellaneous Exempt and Complying Development. This provision ceased to apply in the Shire of Wollondilly from 26 March 1999, but Mr Garton had moved in well before that date when the provision was in force. That clause relevantly states: (1) This clause applies to development on land for a purpose that is ancillary or incidental to a purpose for which the land may be used, being development: (a) for the purpose of parking, loading facilities, drainage, workers' amenities, pollution control, security or for other similar purposes, or ... 30Mr Rigg submits that, since Mr Garton was performing a caretaker/ security role, the provision of a worker's amenity in the form of shelter did not and does not require development consent, being ancillary and incidental to the lawful use of the property for agriculture. 31The submission would succeed if all that the building was used for was the provision of a worker's amenity in the form of shelter and for security functions within Mr Garton's role as a caretaker. But since, as I have found, the building performs more than that limited function for Mr Garton and is properly denoted as a "dwelling" and is Mr Garton's domicile, then his use and occupation of it is not protected by cl 10(1) of the Policy. 32Finally, the Council complains that Mr Garton's use of the toilet in the nearby building (described in the evidence as "the pink building") is unlawful in the absence of an approval to operate a system of sewage management within the meaning of s 68A of the Local Government Act 1993. In this respect Mr Rigg gave an undertaking to the Court on behalf of the owners of the property that the toilet in question will not be used unless and until an approval to operate it is granted by the Council. 33The Council by its summons seeks declaratory and injunctive relief. For the reasons outlined in paragraphs [1] - [17] above the relief sought is declined. There is no point in making the bare declarations that the Council seeks in the absence of any consequential relief. Moreover, the making of the declarations sought as to the unlawfulness of the use of the building by Mr Garton might be used by either the Council, or by others, to remove Mr Garton from the building, notwithstanding that the Court has declined to grant the injunctions sought.