Land and Environment Court of New South Wales CITATION : Walton and anor v Blacktown City Council [2009] NSWLEC 1040 APPLICANTS Lance & Linda Walton PARTIES : RESPONDENT Blacktown City Council FILE NUMBER(S) : 10310 of 2008 CORAM: Moore C - Taylor C DEVELOPMENT APPLICATION :- Transitional group home KEY ISSUES: Compliance with Building Code of Australia Need for Plan of Management Adequacy of plans and information SEPP 9 - Permanent and Transitional Group Homes - ss 2 & 5 LEGISLATION CITED: Environmental Planning and Assessment Act 1979 - s 80A(11) Environmental Planning and Assessment Regulation 2000 - s 98 SEPP (Infrastructure) 2007 - s 11 DATES OF HEARING: 15 September and 5 November 2008 and 22 January 2009 DATE OF JUDGMENT: 20 February 2009 APPLICANTS In person LEGAL REPRESENTATIVES: RESPONDENT Ms M-L Taylor, solicitor Bartier Perry JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES MOORE C TAYLOR C 20 February 2009 10310 of 2008 L & L Walton v Blacktown City Council JUDGMENT 1 COMMISSIONERS: Mr and Mrs Walton own a property on the corner of Joseph and Nicholas Streets at Blacktown. It is a substantial freestanding dwelling house. For some time, Mr and Mrs Walton have operated these premises as a transitional group home. They have done so without the consent of Blacktown City Council. 2 Nicholas Street runs, approximately, East West and Joseph St, north-south. The house is in the crook of the elbow of the bend where the two streets join. Joseph Street slopes gently to the south from this joinder of the two streets. The allotment upon which the house stands reflects this slope to the south. The principal orientation of the house is towards Joseph St. Whilst there is an internal staircase between the two levels of the house, there is also an external staircase on the Joseph Street facade providing an access to the upper level. 3 Mr and Mrs Walton now seek consent for the use of the premises for this purpose – for 19 occupants (as best we can understand it), including a caretaker, to be accommodated in a total of 9 bedrooms. This number of bedrooms requires some internal renovations to the building. These internal alterations are also part of this application – although the Waltons have not confirmed the precise details, finally. 4 The application has been opposed, vigorously, by a number of residents who live in the vicinity of the premises. This opposition has, primarily, arisen from what these residents consider to be the unacceptable and antisocial conduct of the occupants of Mr and Mrs Walton's facility. 5 We inspected the house on 12 September 2008. We were also able to see along Nicholas and Joseph Streets in the immediate vicinity of the Walton's property. In the course of our inspection of the property, we heard evidence opposing the application from a number of these residents and also evidence supporting it from several past or present residents of the facility. We have also heard evidence, in Court, on the final hearing day, from two of the residents concerning matters which they described as having taken place since the original site inspection and resident evidence. 6 The matters raised by the residents included evidence of a number of attendances by police officers at or in the vicinity of the premises with these attendances being a reasonably regular occurrence. What, if anything, we are to make of this is discussed in more detail later. Planning controls 7 In a formal sense, the proposed use and the internal renovations are permissible within the residential zone where the premises are located. There is a dispute, as a result of the timing of lodgement of Mr and Mrs Walton's application and the fact that the council had not determined it at the time of the repeal of State Environmental Planning Policy 9 (dealing with permanent and transitional group homes), whether or not SEPP 9 applies to the application. We are of the view that it does so for reasons discussed later. Council objections 8 In addition to the wide-ranging objections raised by the local residents in their submissions, the council has raised two substantive areas of concern relating to the application. These related to the necessity for, as the council sees it, significant works being required by the Building Code of Australia (BCA) for the building to be rendered compliant as a Class 3 building under the BCA, rather than a Class 1a dwelling under the BCA, as a consequence of the change of use from a single dwelling to a transitional group home. 9 Further, in the alternative, the council submitted that, if compliance with what the council considered were the necessary works to respond to the change of building classification were not accepted on the basis of such change of classification, a number of fire safety works were required on the broader basis of public safety. 10 The council also submitted that a detailed plan of management is required to establish a proper framework for management of the premises – including dealing with behavioural matters that might be associated with its occupants. Such a plan of management would also benefit the residents of the transitional group home. A plan of management, the council submitted, was required prior to the operation of any consent. As a consequence, the council's without prejudice conditions of consent proposed a deferred commencement condition requiring a plan of management, to the satisfaction of the council, prior to the consent coming into effect. 11 The council also proposed that any consent should be subject to a 12 month trial period to enable proper assessment of the effectiveness of the plan of management and the operation of the transitional group home. 12 Finally, if an approval were to be given, the council proposed a number of additional ameliorative works to respond to several privacy concerns raised by local residents. 13 The council also opposed the appeal being upheld on the basis that Mr and Mrs Walton had not, by the conclusion of the final day of the hearing, provided sufficient information about what they were actually seeking in the layout and operation of the premises for the Court to have any certainty about the application. 14 Ms Taylor, solicitor for the council, submitted that, if we were to uphold the appeal on the basis of the state of information before us at the conclusion of the hearing, to do so would require us to have, effectively, adopted one of the several differing configurations for the layout of the premises advanced by Mr Walton on behalf of himself and his wife during the course of the hearing. This, it was submitted, would, in effect, have us designing the facilities for the premises because the differences between the various configurations advanced by Mr Walton during the course of the hearing, had substantial and material differences between them. Following this path, it was submitted, would be going well beyond (and inappropriately beyond) the type of minor amendment commonly required by the Court for adjustments of glazing, erection of privacy screens and the like. 15 Finally, in summary, the broader position of the council was that if Mr and Mrs Walton provided clear and precise details of what they were seeking; additional works were undertaken to the building to address the council's compliance issues with the BCA; the minor matters proposed to respond to privacy issues raised by residents were implemented; and an appropriate and comprehensive plan of management were provided that could be incorporated in the conditions of consent, a transitional group home could be operated, at least on a trial basis, at the premises (subject to the determination of the appropriate number of residents for such a facility at those premises). Mr Walton's objections to notification of the application 16 In the period between the hearings of the matter in 2008 and closing submissions on 21 January 2009, the council filed and served a number of resident objections that were supplementary to the original residents' objections to the application. 17 Mr Walton objected to the council having notified the residents of this application in the first instance and of having re-notified the application, in its somewhat more detailed form then further identified following the site inspection and resident evidence. 18 We deal with this submission concerning notification as it underpins the implied submission that we should reject the resident evidence as being, somehow, tainted. 19 Part K of the Blacktown Development Control Plan 2006 deals with the notification policy of the council. Notifications are, in significant measure, discretionary as shown by the provisions of 2.1 of this section of the development control plan. Notification will be undertaken if there is a possible detrimental effect on neighbouring properties, in the opinion of council's assessing officer. Hence, from the dispatch of both initial and subsequent additional notification, we reasonably infer that the relevant council accessing officer formed the requisite opinions that such notifications were appropriate. We do not, therefore, see that Mr Walton has any legitimate complaints with respect to council's notification of his and his wife's application or the subsequent re-notification after our site inspection. Privacy 20 Evidence was given by Mr R Jensen, the council's town planning consultant, that additional privacy protection for the neighbours was desirable as a consequence of use of the premises as a transitional group home. The additional protections council suggests are necessary comprise: o privacy screening along the street-fronting external staircase leading to the upper level of the dwelling; and o privacy screening by louvres or translucent glazing to the two bedrooms, at the upper level, which overlook the neighbour's backyard to the west. 21 With respect to the staircase, there was extensive resident evidence that people who lived in the transitional group home sat on the staircase for purposes of conversation; smoking or other relaxation. Mr Walton acknowledged that he and his wife to have a "No Smoking" policy within the house. Residents of neighbouring dwellings expressed their concern about being stared at, when walking past the premises, by persons sitting on the staircase and being, from time to time, subjected to remarks directed at them by such persons. In addition, neighbours across the street complained of their privacy being intruded upon a consequence of the use of the stairs as a comparatively intensely occupied recreation area and that overlooking this was significantly greater than would be the case if the stairs were used merely used for the usual purpose of movement to and from the upper level of the dwelling. 22 It was Mr Jensen's opinion that, because of the inevitable turnover of occupation of bedrooms on the upper level, the ordinary levels of respect for neighbours might not be present. As a consequence, it would be appropriate to require additional privacy protection measures for the neighbour's backyard that would otherwise be overlooked from these bedrooms. 23 In each case, because of the proposed use as a transitional group home, the likely consequence, even with the best will world, is that the occupants of the facility will not have the same social commitment to their neighbours as would be the position if the dwelling were used as a single family home. 24 We accept that, on the basis of a reported incidents in the past and the likelihood that the occupants will continue to require use of outdoor areas, including the stairs, for social purposes, that is not unreasonable to require a degree of privacy screening of the stairs. Doing so will also resolve any issue as to whether or not the existing balustrade meets appropriate safety standards. The method of doing so is a matter of detail that could be settled by Mr and Mrs Walton and the council prior to any commencement of permitted operation as a transitional group home. 25 Similarly, privacy issues will also arise from the use of the upper level of the house as part of the facility's transitional accommodation. As a consequence, it is appropriate that additional privacy protection be provided to the adjacent neighbour by the installation of appropriate privacy measures (either by obscure glazing or louvres to the windows of these two bedrooms). Again, the method of implementation could be capable of being settled between Mr and Mrs Walton and the council prior to any approved commencement of approved operation. Compliance with Class 3 requirements of the BCA 26 With respect to the required standard of any modifications which might be required to the building, these issues arise from the evidence of Mr T Taylor, the council's senior building surveyor, who gave uncontradicted expert evidence concerning compliance issues relating to the BCA. 27 It was Mr Taylor's evidence that the premises, if occupied by a single family, would be a Class 1a building under the BCA. Mr Taylor expressed the opinion, based on his calculation of the floor area of the premises that this floor area exceeded 300 m². We note that this calculation is disputed by Mr and Mrs Walton but, given the conclusions that we have reached on this issue (discussed below), we are satisfied that we do not need to determine the precise floor area of the premises. 28 It was Mr Taylor's view that, because of the proposed use was analogous to a boarding house, guesthouse or the like, coupled with a floor area of greater than 300 sq m (as he has calculated it) and occupancy of by more than 12 persons, the premises do not satisfy either definition in Class 1 of the BCA as they breach each of the two subclauses of that definition. 29 As a consequence, Mr Taylor expressed the opinion that the premises will be: o a residential building not being as a Class 1 building; o used as a place of transient living for a number of unrelated persons; and o are analogous to other facilities in Class 3 of the BCA; and o therefore, classified as a Class 3 building. 30 If Mr Taylor's construction of the BCA is correct, his interpretation means, on his evidence, that a number of significant upgradings are required to the fabric of the building to ensure its compliance with Class 3 standards to a level acceptable to the council. These upgradings also include a number of fire safety measures which, as earlier noted, the council says it should be undertaken not merely for BCA compliance but also as a matter of broader public safety policy. 31 For a building to satisfy the first of the tests for a Class 1a building, it is necessary for the premises to be used as a single dwelling and be a detached house. There is no doubt that, in this instance, the second of those requirements are satisfied. 32 The BCA contains no definition of the term dwelling. The BCA provides no other assistance in understanding the meaning of this term except that, if such a building is a residential building not encompassed by Class 1, a variety of other alternative terms come into play in both Class 1 and Class 3. 33 In this case, compliance with the requirements for the appropriate BCA class is, as in other planning applications where imposition of general conditions of consent are involved, a statutorily mandated requirement to be included in such conditions of consent by virtue of a combination of s 80A(11) of the Environmental Planning and Assessment Act 1979 and s 98 of the Environmental Planning and Assessment Regulation 2000. The applicable planning framework 34 It is, therefore, relevant to ascertain how these premises are defined as a consequence of the environmental planning and assessment legislative framework before determining how this fits in the framework of the BCA. 35 From 1 January 2008, SEPP 9 was repealed by virtue of s 10 and sch 4 of SEPP (Infrastructure) 2007. However, the savings provision contained in s 11 of this latter SEPP mean that none of its provisions apply to or in respect of: the determination of a development application made under Part 4 of the Act, but not finally determined before the commencement of this Policy, 36 The application made to the council by Mr and Mrs Walton falls within this exception and, as a consequence, the provisions of SEPP 9 continue to apply to it. 37 SEPP 9 defines a dwelling as meaning 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. 38 SEPP 9 defines a transitional group home as being a dwelling: o used to provide temporary accommodation, for the purposes of relief for rehabilitation, this is for disabled persons or socially disadvantaged persons whether those persons are related or not; and o occupied by the persons referred to in paragraph (a) as a single household, either with or without paid or unpaid supervision or care and with or without payment for board and lodgings being required but this does not include buildings to which State Environment Planning Policy No 5 – Housing for Aged or Disabled Persons applies. 39 The critical combination of elements associated with the present premises in considering these definitions, in our view, is as in the following paragraphs. 40 Whatever might be the intended final layout envisaged by Mr and Mrs Walton's for these premises, none of the plans that we have seen nor anything that was obvious during the course of the site inspection could cause us to conclude, logically, that the premises had or would have elements that could be regarded as separate domiciles under a single roof. The present layout of the premises and any possible proposed alterations to them within the scope of any of the plans provided by Mr Walton envisages, clearly, private occupancy of bedrooms but shared use of common cooking, ablution and indoor and outdoor recreation spaces. We are therefore of the view that the premises satisfy the definition of a dwelling in SEPP 9. 41 Mr and Mrs Walton's premises; o are to be used for the provision of appropriate temporary accommodation for socially disadvantaged persons (it is not their intention to cater for disabled persons because of the extensive modifications which would otherwise be necessary to the premises for these purposes); o although there may be some family groups involved, generally there will be a range of unrelated persons resident in the premises; and o under the supervision of a caretaker, those occupants will comprise a single household. 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. 44 In addition, as the premises are correctly to be classified as a Class 1a building, any issues of non-compliance with classification requirements for a Class 1b building under the BCA (the numerical limit as to the floor area or the numerical limit as to permitted occupancies) do not arise. If the premises are properly classified as Class 3 under the BCA 45 However, if we are wrong and the prermises should be classified as a Class 3 building, we have considered what would be the consequences of this. 46 We note that the provisions of the Regulation include, in cl 187(2)(b), an opportunity, where an existing building is undertaking a change of use and BCA compliance measures are otherwise required, that objections can be made to those compliances on the basis that it is either unreasonable or unnecessary for any or all such compliance measures to be undertaken. 47 This provision was drawn to Mr and Mrs Walton's attention during the course of the hearing. A further opportunity was specifically provided, during the nearly four week period prior to the final hearing day, to file submissions with respect to any or all of these provisions on the basis that compliance was neither unreasonable or unnecessary. We note that no such submissions were filed. 48 We provided this opportunity to Mr and Mrs Walton as we wished to make sure that, if we were wrong in any conclusion we had reached concerning the classification of the building pursuant to the BCA, they would have had the maximum opportunity to address the BCA compliance issues raised by the council on their merits. 49 If it were to transpire that we are incorrect in our view of the classification of the premises, the necessary consequence of the absence of submissions concerning exemption from compliance would leave us with uncontradicted expert evidence about what was required for Class 3 compliance and a statutory obligation, under those circumstances, to require compliance with the BCA by way of conditions of consent. 50 This would mean, in the absence of any substantive objections from Mr and Mrs Walton, we would have been obliged, on the uncontradicted expert evidence Mr Taylor, to require those works to be carried out. The need for a plan of management 51 We admitted a statement of evidence and heard oral evidence from Ms B Castor, a social planning consultant engaged by the council, regarding the need for a plan of management. In her evidence, she set out cogent reasons why a plan of management, appropriately drafted and implemented, would provide a proper basis to address the reasonable concerns of the neighbours that related to general behavioural and occupational issues if the premises were to be used as a transitional group home. 52 Her evidence is uncontradicted and, in response to questions asked of her, she provided a comprehensive analysis of all of the various matters that might be provided for in a plan of management. Her responses to questions in her oral evidence explained, in general rather than precisely drafted terms, what the provisions of such a plan of management might contain. 53 Accepting, as we do, that there has been a range of unsatisfactory behaviours by residents of the facility in the past, as detailed in the residents' evidence, Ms Castor's evidence provided sufficient drafting guidance to enable Mr Walton to prepare an outline of a plan of management on behalf of himself and his wife. 54 We accept Ms Castor's uncontradicted evidence of the desirability for and broad appropriate content of such a plan of management for premises such as these. Under the circumstances, accepting those reasonable elements of the residents' objections, we also accept, as a broad proposition, that a properly implemented and comprehensively scoped plan of management could sufficiently ameliorate those problems to permit, at the very least, Mr and Mrs Walton being granted a consent to operate a transitional group on a trial basis. Thus we accept that, on broad planning grounds, there is a general desirability for a plan of management for premises such as these when there are circumstances demonstrating the actuality if not merely the potential for adverse impacts on the local community. 55 In the council's final without prejudice conditions of consent, the council suggested that the following topics required to be covered by a plan of management: o tenant arrivals and departures; o source of referral; o length of stay policy; o managing overstays; o access by non-residents; o allocation of rooms; o rights and responsibility of tenants; o child protection (as per NSW legislation); o health and safety procedures; o linen cleaning; o waste disposal; o removal of any contaminated waste; o smoking, alcohol and drug policies; o fire safety and evacuation; o duties and responsibilities of on-site manager; complaint or dispute handling procedures; o use of facilities (kitchen, bathrooms, car parking etc.); o management access to tenant rooms; o disabled access; and o site security 56 On the last occasion when the matter was before us in this 2008, we specifically indicated to Mr Walton that the opportunity remained for him to prepare and lodge a draft plan of management for consideration by the Court before we made any decision on his and his wife's application. 57 In a written submissions filed prior to the final hearing day, Mr Walton provided, inter alia, the following: 58 On the morning of the final day of the hearing, having read his comments shown above, Mr Walton was invited, even at that late stage, to provide us with the draft plan of management he said he had prepared. We gave this late invitation so that, if accepted, we would have had the maximum opportunity to consider whether there was any appropriate basis upon which that element of concern about his application could be resolved. He declined our express invitation to do so. 59 Mr Walton also objected to each and every one of the topics proposed by the council to be incorporated in a plan of management. 60 It is also clear from Mr Walton's closing submissions concerning the proposal for a plan of management that he misunderstands, fundamentally, what might be required of a plan of management and its purposes. One example will suffice to demonstrate this. The council proposes that the topic of tenant arrivals and departures should be dealt with by such a document. We note, in passing, that the use in this context of the word tenant was accepted by the council's solicitor as being inappropriate and that the word resident was the more appropriate expression to be used. 61 Mr Walton took this suggested provision to mean that there would be an obligation to notify the council, on a regular and ongoing basis, of who was resident at the premises and that he would be obliged to report to the council when they arrived and departed. 62 It is our understanding, consistent with Ms Castor's evidence, that what such a provision to would require would be a register, broadly akin to a hotel register that was capable of being inspected by council officers or any other appropriately authorised person. We also understood that such a plan of management provision would make it clear what the processes would be at the time of arrival or departure. It would also state whether there would be set times of the day or the days of the week when the arrivals and departures would ordinarily be expected to take place. We also understood that, if there were to be exceptional circumstances which permitted departure from these broad provisions, that should also be provided for in such plan of management. 63 Such a broad provisions, in our view, could only be regarded as unexceptional. Based on Ms Castor's evidence and our own experience with the use of plans of management as an appropriate tool to address the control of and minimisation of inappropriate behaviour and to ensure appropriate running of such facilities, we find that the remainder of the topics proposed by the council for a plan of management are not unreasonable. Adequacy of information 64 With respect to the number of bedrooms and their physical configuration and the number of persons proposed to occupy the premises at any one time, there remained significant uncertainty as to what precisely was the scope of the application. Mr Walton's written submissions incorporated a further plan of the premises with room arrangements that differed from those which had been discussed at various times during the course of the proceedings. Although Mr Walton made no further application to amend the proposal to reflect this further plan to, we remain with a significant sense of unease as to precisely what the internal layout proposed for the dwelling would be if we were to grant consent based on the material presently before us. 65 As certainty is an essential prerequisite to the granting of a development consent, such certainty should have been available to us to enable a proper decision on the merits of Mr and Mrs Walton's application. It was not available. 66 We are not satisfied that the plans that are presently before us could form an appropriate basis of an application capable of clear interpretation in this regard. Attendances by the police at the premises 67 A number of the neighbours gave evidence, both written and oral, concerning attendances by police at the premises. There are varied reasons why the police might attend the premises. Those reasons encompass matters which might not provide a basis for drawing any adverse inference concerning the operation of the premises or the activities of any of its residents. In one example, reference was merely made a number of occurrences of police vehicles in the street. As there is no police evidence, we have no reason to assume or basis for concluding that these occurrences involved attendances by the police at Mr and Mrs Walton's premises. 68 In any event, despite the council being on notice for a considerable period of time about written and proposed oral residents' evidence concerning police attendances at the premises or in the vicinity of the premises, the council has not called any evidence from the New South Wales Police nor has it tendered any police documents concerning police activity at or the vicinity of the premises. As a consequence, as we indicated to Ms Taylor we might do, although we are not bound by the strict rules of evidence, we are satisfied that we should draw the inference that any evidence that might be available from the police would not provide any assistance to the residents in their objections. The public interest in the provision of transitional group homes 69 Mr Walton tendered a copy of SEPP 9 and the covering circular sent by the Department of Urban Affairs and Planning, as it then was, it to councils on March 18, 1989. This circular makes it clear that there is a public need for permanent and transitional group homes in order to respond to the social demand for places in them. 70 Mr and Mrs Walton tendered a testimonial from ADRA Community Projects - Blacktown expressing this organisation's support for Mr and Mrs Walton to be permitted to operate a transitional group home at the premises and, by necessary implication, demonstrating there is a need for such a facility in the Blacktown community. 71 Ms Castor's evidence also reinforces our acceptance of the proposition that, whether in the difficult economic times as the community is presently experiencing or more generally, there is a legitimate social role for such facilities. We accept that that this need exists generally and in Blacktown specifically. 72 However, although there is an undoubted broader public benefit for and public interest in providing that such facilities, that public interest cannot set aside the need to give appropriate regard to the desirability of having a proper and effective plan of management for this facility. 73 Unfortunately, in a broader social policy sense, the refusal of Mr and Mrs Walton to provide even a rudimentary plan of management that addressed most (if not all) of the matters proposed by the council, despite Mr and Mrs Walton being specifically invited to do so on several occasions means that we are obliged to dismiss the appeal. 74 Had Mr Walton provided sufficient particularity and clarity to his application and a plan of management, even if rudimentary, but in sufficient terms to enable it to be critiqued and, if necessary, amended by us, it might have been possible for us to reach a conclusion that we could, at the very least, approved a conditional consent for a transitional group home at these premises on the basis of a 12 month trial period. 75 However, the failure of Mr Walton to provide clarity and precision to the nature of the internal physical occupation proposed for the building together with his refusal to provide any form of plan of management has left us in a position where we must, necessarily and appropriately, refuse the application. 76 The orders of the Court, therefore, are that: 1. The appeal is dismissed; 2. Development Application 07/1567 for a transitional group home at 16 Nicholas Street, Blacktown is determined by refusal of consent; and 3. The exhibits are returned. Tim Moore Dr Mark Taylor Commissioner of the Court Commissioner of the Court 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.