Posted on August 12, 2013 by Megan Hawley

Further judicial consideration of what constitutes a dwelling

Yet another case has been handed down by the Land & Environment Court regarding what constitutes a dwelling.

In the case of McAuley v Northern Region Joint Regional Planning Panel [2013] NSWLEC 125, Craig J of the Land & Environment Court was considering whether a proposed development fell within the definition of ‘transitional group home’ under the Coffs Harbour City Local Environmental Plan 2000 (LEP), which is the same definition as in the Standard Instrument.

The term ‘transitional group home’ is defined in the LEP as a dwelling which is used to provide temporary accommodation for certain purposes and which is occupied as a single household.

‘Dwelling‘ is defined in the LEP as ‘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’.

Craig J acknowledged the emphasis in previous judgments of the Court of the need for permanence of occupation for a building to constitute a domicile, and therefore a dwelling.

However, he held that the defined meaning of the term ‘dwelling’ did not control the meaning of the term ‘transitional group home’ such that to be a transitional group home there needed to be permanence of occupation. This was in part because the definition of ‘transitional group home’ expressly refers to temporary accommodation. What this means is that even a term defined in the instrument, can take on a different meaning within other definitions in the same instrument.

Craig J also held that nothing in the definition  of dwelling means that all elements of the dwelling need to be in a single building, and that there is no constraint on the number  of bedrooms.

On that basis, Craig J held that the proposed development was a dwelling, for the purposes of the definition of transitional group home.

The proposed development was a drug and alcohol rehabilitation centre, where residents were proposed to stay for 3-6 months for rehabilitation, and would be involved in domestic chores as well as counselling and therapy. The development involved:

• one pavilion containing 20 bedrooms each with ensuite facilities and shared lounge and laundry facilities on each floor;
• another connected pavilion containing interview rooms, storage areas, laundry and toilet facilities, a further lounge area, meeting rooms and computer room, kitchen, pantry and dining room; and
• a third connected pavilion containing a pool and gym.

The proposed development in scale and character is presumably not what the average person would consider to be a dwelling.

Craig J’s comments regarding the fact that a dwelling  can have many bedrooms, and be comprised of a number of buildings, would apply generally to the definition of ‘dwelling’ as it appears in other instruments. However, his comments regarding permanence were made in the context of the term ‘dwelling’ where used in the definition of transitional group home.

It cannot be said that there is no need, generally, for permanence, for a building to comprise a dwelling. However, that need for permanence may disappear if the term dwelling is used in other definitions.

Craig J went on to consider staff accommodation provided on the same property in separate dwelling houses. He held that the use of those houses was for the purpose of the transitional group home, and that therefore they were properly characterised as  transitional group home and not as dwellings.

That finding in itself is not unsurprising, as the LEP (like the Standard Instrument) provides that in the land use table a reference to a building or thing is a reference to development for the purpose of that building or thing. However, he also took this characterisation of the staff accommodation further.

The relevant LEP contained separate provisions (outside of the land use tables) restricting the erection of an additional dwelling on the property due to the size of the land. Craig J held that those provisions were irrelevant to the erection of the dwellings for staff accommodation because of the characterisation of those buildings as for the purpose of ‘transitional group home’ rather than the purpose of dwellings. However, unlike the land use table, there is nothing in the relevant provisions which says that a reference to ‘erection of dwellings’ in those provisions is a reference to development for the purpose of dwellings. However, Craig J read the words ‘for the purpose of’ into those provisions.

If this is correct, then there are broad  implications. Many local environmental plans contain restrictions on the erection of dwellings on land which is less than a prescribed minimum lot size. Those provisions are not contained in the land use table.

If an argument can be made that those provisions do not apply if the dwelling is for another purpose, then owners of rural land could claim that additional dwellings are for the purpose of agriculture in order to thwart minimum lot size restrictions.

It may be that this decision, in so far is it relates to what constitutes a dwelling for the purposes of the definition of ‘transitional group home’ has limited implications. However, it may provide scope to argue that the meaning of the word ‘dwelling’,  or any other defined term in a planning instrument, can vary when used within other defined terms in the same planning instrument.

The suggestion that dwellings ancillary to other uses can be erected contrary to minimum lot size provisions in local environmental plans needs to be addressed, as it could encourage a spate of applications for agricultural uses, and ancillary dwellings houses, and lead to multiple dwellings being erected on rural land.