Land and Environment Court New South Wales Medium Neutral Citation: Association for Better Living and Education Inc v Wyong Shire Council (2) [2014] NSWLEC 1239 Hearing dates: 19 August 2014 Decision date: 19 November 2014 Jurisdiction: Class 1 Before: Dixon C Decision: See Orders at [70] and [71] Note. The appeal is referred to the Registrar for further directions and to fix a date for the hearing of the merits of the application. Catchwords: APPEAL - Development application - Separate question - Characterisation of the development - consent sought for a "transitional group home" - definitions in State Environmental Planning Policy (Affordable Rental Housing) 2009 - residential facility for rehabilitation of those recovering from drug and alcohol abuse - whether the proposed development is a "dwelling" within the definition of "transitional group home" Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 s 34 State Environmental Planning Policy (Affordable Rental Housing) 2009 s 42 Wyong Local Environmental Plan 2013 Wyong Local Environmental Plan 1991 cl 7 Cases Cited: Association for Better Living and Education Inc v Wyong Shire Council [2014] NSWLEC 96 Blacktown City Council v Haddad [2012] NSWLEC 224 Dooralong Residents Action Group Pty Limited v Wyong Shire Council [2011] NSWLEC 251;186 LGERA 274 at [34]-[35] and [99] McAuley v Northern Joint Regional Planning Panel [2013] NSWLEC 125 South Sydney Municipal Council v James & Anor (1979) 35LGRA 432 Wollondilly Shire Council v 820 Cawdor Road Pty Ltd [2012] NSW LEC 71 Category: Principal judgment Parties: Association for Better Living and Education Inc (Applicant) Wyong Shire Council (Respondent) Representation: Mr A Pickles SC with Mr K Rodgers (Applicant) Mr I Hemmings SC with Ms B Charlton (Respondent) Brock Partners (Applicant) Wyong Shire Council (Respondent) File Number(s): 10302 of 2014 Judgment 1This judgment deals with the determination of a preliminary issue as to whether a proposed development is prohibited in a particular zone under a planning instrument. The determination of this issue, before any other, was ordered by Biscoe J in Association for Better Living and Education Inc v Wyong Shire Council [2014] NSWLEC 96. The parties 2The applicant, the Association for Better Living Inc., is a non-profit charitable organization. It has commenced an appeal under s 97(1) of the Environmental Planning and Assessment Act 1979, against the Wyong Shire Council's refusal of its development application for drug and alcohol rehabilitation services being carried out from existing buildings on land at Yarramalong. The separate question 3The Court has ordered the preliminary determination of the following contentions: (a)the contentions set out in paragraph B1(1) of Part B of the Statement of Facts and Contentions filed by the respondent on 12 June 2014; and (b)the contentions set out in paragraph 1 of Part B of the Statement of Facts and Contentions in reply filed by the applicant on 23 June 2014. 4Paragraph B1(1) of Part B of Council's Statement of Facts and Contentions states: B1 - Contentions that warrant the refusal of the application 1. The proposed development is prohibited and so there is no jurisdiction for the granting of consent to the subject development application. PARTICULARS 1.1 On 23 December 2013 the Wyong Local Environmental Plan 2013 ("WLEP 2013") commenced and the Wyong Local Environmental Plan 1991 ("WLEP 1991") was repealed. 1.2 The subject development application was submitted to the Respondent on 8 October 2013. Clause 1.8A of WLEP2013 requires that the subject development application be determined as if WLEP 2013 has not commenced. 1.3 Part of the site to which the subject development application relates was within the "Zone 7(a) Conservation Zone" under the WLEP1991, 1.4 Clause 10 of the WLEP1991 sets out a development control table for each of the zones prescribed in the WLEP1991. The development control table for the 7(a) zone provides that: 1.4.1 Development for the purpose of "home occupations" is permissible without consent; and 1.4.2 Development for any of the following purposes is permissible only with consent: Agriculture; bushfire hazard reduction; communications facilities; community facilities; dams; drainage; dual occupancy buildings; dwelling-houses; home businesses; nutrient control facilities; recreation areas; utility installations; and 1.4.3 Development for all other purposes is prohibited. 1.5 The proposed development is not for any of the following permissible purposes: Agriculture; bushfire hazard reduction; communications facilities; community facilities; dams; drainage; dual occupancy buildings; dwelling-houses; home businesses; home occupations, nutrient control facilities; recreation areas; utility installations. 1.6 The proposed development is prohibited. 5Paragraph 1 of Part B of the applicant's Statement of Facts and Contentions in Reply is as follows: Permissibility The Applicant contends that the application is permissible with consent. Particulars a) The development is capable of being characterised as a "community facility" under Wyong Shire LEP 1991, which is a permissible use of the land in the 1(a) and the 7(a) zones. b) Alternatively, the use can be characterised as a "transitional group home" which is permissible in the 1(a) zone with consent pursuant to Wyong Shire LEP 1991 and permissible with consent under SEPP (Affordable Rental Housing) 2009 in the 7(a) zone; see McAuley v Northern Region Joint Regional Planning Panel [2013] NSWLEC 125. 6In order to appreciate the competing submissions in respect of the issues raised by the separate question it is convenient to set out the facts as agreed by the parties (Exhibit A). The site 7The site is known as at Lot 95 DP 1101803. It is accessed via a private road known as "Rose Hill Lane" and has an area of approximately 15.01 hectares. It is located about 2km north of the rural village of Yarramalong and located approximately 27km west of Wyong. 8The site contains 8 existing buildings, two swimming pools (one with water slide) and a tennis court. Zoning 9The Wyong Local Environmental Plan 2013 ("LEP 2013") applies to the site. 10The site is partly within the "E3 - Environmental Management" zone and partly within the "RU1 -Primary production" zone under LEP 2013. 11Clause 1.8A of the LEP 2013 is a saving clause that requires the subject development application be determined as if LEP 2013 had not commenced. Accordingly, the Wyong Local Environmental Plan 1991 (LEP 1991) applies to this development application. 12Part of the site lies in the 1(a) "Rural Zone" and part in the 7(a) "Conservation Zone" under LEP 1991. 13As a result, some of the buildings are in the 1(a) zone and the rest are in the adjoining 7(a) zone. Annexed and marked "A" is a plan that identifies the location of the 8 buildings on the site and the location of the boundary between the 1(a) and 7(a) zones under the LEP 1991. Buildings 1, 2 and 3 are located within the 7(a) zone, and buildings numbered 4, 5, 6, 7 and 8 are located within the 1(a) zone. The Proposal 14The proposal, as described in the development application, is for the use of the premises as a "community facility" to provide drug and alcohol rehabilitation services for up to 21 participating residents living on the site for 3 to 5 months with a maximum of 20 staff, up to 13 of whom will reside on site. 15The proposed drug and rehabilitation services are provided by way of a supervised program called Narconon Program, being an addiction recovery and life skills program. The Narconon Program involves the following steps: + Communications skills training; + Body cleansing by gym, sauna and exercise routines; + Learning improvement course; + Communication and perception course; + Understanding ups and downs course; + Personal values and integrity; + Life skills training to avoid relapse; + Way to happiness course. 16Residents of the program will pay a fee for residing at the facility and participating in the Narconon Program. 17The application involves the use of existing buildings and no new buildings are proposed to be erected on the site. The configuration of the rooms is shown on the amended plans submitted to the Council on 14 March 2014, at pp. 258 to 263 (inclusive) of the agreed bundle (Exhibit B). 18Residents of the program will be encouraged to participate in domestic activities of cooking, cleaning, gardening and property maintenance and will be required to clean their own bedrooms. 19Medical assistance is limited to a nurse providing assistance with residents experiencing withdrawal symptoms, but no medication or medical treatment will be administered on site. 20Residents undergoing the program will reside on site and all meals are to be provided at fixed times in the communal dining room on site. It is expected that outings outside the facility will be occasional and limited to residents in the closing stages of the program. 21Residents of the program are to be drawn from around NSW, including the Wyong Local Government Area. 22Residents will be transported to and from the site and transport hubs such as train stations, bus stations or airports by vehicles owned and operated by the applicant or its staff. 23As set out in Exhibit A, the buildings will be used for the following purposes: BUILDING NUMBER PROPER USE 1 Reception (intake), common laundry, 4 x resident bedrooms (12 beds) 4 x ensuite bathrooms, main communal kitchen, dining room, communal lounge/reception room 2 Garage 3 Staff bedrooms x 3 (7 beds), 2 x resident "withdraw" bedrooms (4 beds), 1 x "withdraw" lounge room, nurse room, secondary kitchen, lounge/dining, cool room 4 4 x staff offices, staff kitchenette, 4 x staff toilets, 2 x communal toilets, laundry 5 3 x resident bedrooms (11 beds), 1 x bathroom, coffee/tea making facility 6 2 x offices, course room, 2 x toilets 7 2 x course rooms 8 1 x course room, office, sauna and gym 24The parties have prepared written submissions which address the characterisation of the development as a "transitional group home" and a "community facility". 25However, the applicant's primary position is that the use is best characterised as a "transitional group home", which is permissible with development consent in the 1(a) zone under the LEP 1991 and, in the 7(a) zone under State Environmental Planning Policy (Affordable Rental Housing) 2009 (the SEPP). 26It prefers the "transitional group home" characterisation of its development for two reasons: (i)First, the definition of "transitional group home" anticipates use for the purpose of "temporary accommodation for...drug or alcohol rehabilitation purposes", which on its facts the applicant contends has a close fit with the physical activity proposed to be carried out on the land. (ii)Secondly, the definition of "community facility" excludes any other use elsewhere defined. This means that if the use is best characterised as a transitional group home, it could not also be a community facility. Applicant's primary position - the development should be characterized as a "transitional group home" under the SEPP. 27The applicant's written submissions rely on the definition of a "transitional group home" in cl 42 of the SEPP. It provides: transitional group home means a dwelling: (a) that is occupied by persons as single household with or without paid supervision or care and whether or not those persons are related or payment for board and lodging is required, and (b) that is used to provide temporary accommodation for the relief or rehabilitation of people with a disability or for drug or alcohol rehabilitation purposes, or that is used to provide half-way accommodation for persons formerly living in institutions or temporary accommodation comprising refuges for men, women or young people, but does not include development to which State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 applies. The applicant also relies upon the definition of "dwelling" adopted by the SEPP from the Standard Instrument - Principal Local Environmental Plan which provides: 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. 28It refers the Court to the consideration of those definitions in the case of McAuley v Northern Joint Regional Planning Panel [2013] NSWLEC 125 which identified four essential characteristics of a "transitional group home" at [54]. 29The applicant contends that its development satisfies these four characteristics. They are: (i) that the group home be a "dwelling"; (ii) that it be occupied by persons as a single household, with or without paid supervision or care and whether or not those persons were related or payment for board and lodging was required; (iii) that the "dwelling" be used to provide temporary accommodation for the relief or rehabilitation of people for drug or alcohol rehabilitation purposes or for people with a disability or used to provide half-way accommodation for persons formerly living in institutions or temporary accommodation comprising refuges for men, women or young people; (iv) development so described does not include development to which the state environmental planning policy (Housing for Seniors or People with a Disability) 2004 applies. 30Without severing the definition in cl 42 of the SEPP into parts, so as to apply a separate meaning to each part, the applicant's written submissions focus upon the essential characteristics of a transitional group home, having regard to the definition as a whole. 31In respect of the first essential characteristic the applicant submits that a commonsense approach to the understanding of the word "dwelling", when used in the definition of "transitional group home", requires that its defined meaning, "be modified so as to operate harmoniously with the defined expression of which "dwelling is but an element". This approach is consistent with earlier jurisprudence: Mc Auley at [71]. 32With that in mind, the applicant contends on the agreed facts, the proposed development contains a suite of rooms that together are capable of being used as a separate domicile. It offers, albeit across a number of separate buildings, bedrooms, bathrooms, a large communal kitchen and two small kitchenettes, a dining room, reception room and laundry (Exhibit A at [18]). Together, the suites of rooms, in their totality are all types of facilities that can be expected to be found within a dwelling: McAuley at [72], [77]. 33In short it is a dwelling. However, as anticipated by the whole definition the proposed development cannot be equated with a conventional dwelling occupied by a single family (AWS [21]). It is a kind of dwelling adapted for transitional group home living which by its size necessarily has an institutional character McAuley at [88]. While accepting that the group home is required to comprise a "dwelling", within the meaning of the term in the composite phrase, its meaning is qualified by the provisions of paragraphs (a) and (b) of the definition which determine both the manner of its occupation as a building and the purpose of its use. 34The applicant submits that the occupants of the development will live as a single household albeit in 8 different buildings. They will sleep in communal rooms, eat together and be encouraged to participate in domestic activities (Exhibit A at [14], [16]). 35The occupants will share communal facilities with no opportunity for independent living and eating in the bedrooms. The applicant distinguishes the features of the proposed development from those discussed in Blacktown City Council v Haddad [2012] NSWLEC 224 at [53] which were held to be uncharacteristic of a "transitional group home". 36When regard is had to the various features of the proposed development the correct characterisation is that the occupants will live as a unit. In this case the occupants will share a community of interest in seeking rehabilitation for drugs and /alcohol, and join together in therapy sessions and supervised group activities in communal rooms. 37The application is for a drug and alcohol rehabilitation facility which fits within the definition of a transitional group home. The period of residence is 3 -5 months with no expectation of return. It is temporary accommodation (AWS at [31]). 38The proposed development does not comprise dwellings for seniors or people with a disability within the meaning of cl 9 of the SEPP (Senior): Dooralong Residents Action Group Pty Limited v Wyong Shire Council [2011] at [74]. Council's Submissions 39The Council contends that the proposed use answers neither of the alternative characterisations and, is prohibited in the 7(a) zone. It submits that the development is not a "community facility" as defined because the services proposed to be provided in the subject buildings are not geographically limited to the "local" community but may be provided to anyone. 40With respect to the characterisation of the development as a "transitional group home," the Council submits that the definition under the SEPP contains a number of elements. The first of those is that the "transitional group home" means a dwelling. 41It is the Council's case that the proposed development does not satisfy the first element of the definition and that is the end of the matter. 42With reference to the definition of "dwelling" in the Standard Instrument the Council submits that the draftsperson deliberately distinguished between, on the one hand , a use carried out in: * buildings (see for example "boarding house"); * building or place( a phrase used in numerous definitions); * facility (see for example "Freight Transport Facility"); or * premises (see for example "funeral home"). 43On the other hand a number of uses are limited to those which may be conducted within a dwelling ,see for example: * Bed and breakfast; * Exhibition home; * Permanent group home ; * Transitional group home; * Home based childcare ; * Home business; * Home industry ;and * Home occupation. 44According to the Council, this distinction between a dwelling based use on the one hand and those not limited to dwellings on the other - is no mere sematic difference. It has the effect of placing significant limitations upon where the home based use may be carried out. It must be in a dwelling (a home). It is not good enough for the various structures to merely amount to a building, place, facility or premises (CWS at [4]-[7]). 45The question arises therefore; what is a dwelling? 46The Council submits with respect to McAuley that the Court got sidetracked and incorrectly focused upon the "user" to determine whether there was a dwelling in that case. The Council's submission is that : 8. Of necessity, the Court then tempered that user because of the temporary nature of the accommodation in the balance of the definition. 9. That is, with respect, to approach the definition of transitional group home in the wrong way. (CWS at [8]-[12]) 47Therefore, it submits that in this case the Court should not focus on the user to determine whether there is a dwelling but, rather, first identify the nature, or construction of the building within which the purpose may be carried out. Next the definition identifies the limitations upon the "occupation" and "use" of that building (the dwelling /home). 48The Council submits that the definition of "dwelling" has two limbs: South Sydney Municipal Council v James & Anor (1979) 35LGRA 432 and Wollondilly Shire Council v 820 Cawdor Road Pty Ltd [2012] NSW LEC 71. 49The first limb relies upon "occupation or use". However, it contends that the first limb is not the correct limb for the purposes of the "transitional group home" definition because the occupation and use (of the dwelling/home) for a "transitional group home" is regulated by the subparagraphs of the transitional group home definition. 50The second limb of the "dwelling" definition looks to the built form itself. It focuses upon its construction or adaptation. 51The issue, therefore, that properly arises, according to the Council, in respect of the first element of the definition, is to determine whether the various structures on the land can be said to be constructed or adapted as to be capable of being occupied or used as a separate domicile. The Council contends that the answer to that question must be - no. 52While the Council concedes that the Courts have accepted that modern design does not require the domicile to be in a single building, the eight scattered structures shown in the plan marked Annexure A do not amount to a dwelling in this case. 53If the Council is wrong on that argument, it submits that there is a further limitation included in the definition of "transitional group home". The dwelling must be "occupied" by persons "as a single household". 54It is the Council's position that the occupation of this development cannot be described as a single household (CWS 22). In support of that submission it refers to the Court to particular features of the development outlined in the agreed facts. In particular, the carer ratio to cared persons at almost 1:1; the separate buildings; separate bedrooms, separate bathrooms, separate kitchens ;separate dining rooms; separate living areas and open spaces for residents and staff (CWS at [24]-[28]). 55It contends that the above features of the development and the occupants' limited involvement in the operation of the household (apart from a few chores as a form to training) support a conclusion that the development cannot be characterised as a single household. And, if the Court is in any doubt, it submits, the nail in the coffin is the feeding arrangements (where the food is prepared and cleaned away by staff) eaten in separate areas. These are not features of a single household. 56In the ultimate, the Council contends that properly understood the proposed use is not a "dwelling". Even if it is, that "dwelling" will not be occupied as "a single household". 57After addressing the development's characterisation as a "transitional group home" the Council's written submissions then deal with its characterisation as a "community facility" (CWS [29] - [40]), a "boarding house" (CWS [41] - [48]) and, finally "commercial premises" (CWS [49] - [51]). Consideration 58I have decided that the applicant's primary position as to characterisation is correct. 59I find that the development is correctly characterised as a "transitional group home" and therefore, the proposed use, is permissible on the site. 60I have formed this opinion based on the reasons articulated by the applicant and summarised above. 61The applicant's focus on the meaning of "transitional group home" having regard to the whole definition is consistent with the Court's reasoning in McAuley at [64]: 64 As with any phrase used in either a statute or planning instrument, purpose and context are important -indeed fundamental -when determining the proper meaning of a phrase ( Matic v Mid-Western Regional Council [2008]NSWLEC 113at [7]-[9];Wilson v State Rail Authority of NSW [2010] NSWCA 198;78 NSWLR 704 at [12]-[13]) Relevantly, the context in which "dwelling "is to be interpreted is its use within a composite phrase that is in turn , the subject of separate definition in the SEPP and the LEP. The interpretation of that phrase should not be undertaken by severing the phrase into parts and applying a meaning to each severed part (Wollongong City Council Vic Vellar Nominees Pty Ltd at [47]) As Biscoe J observed in Vic Vellar Nominees , the High Court in Collector of Customs v Agfa -Gevaert Ltd [1996]HCA 36;186CLR 389 at 400 cited with approval the observations of Oliver LJ in Exxon Corporation v Exxon Insurance Consultant International Ltd [1982] Ch119; [1981] 3 ALL ER 241 where his Lordship said (at 144): ...for my part I do not think that the right way to apply a composite expression is ,or at any rate is necessarily , to ascertain whether a particular subject matter falls within the meaning of each of the constituent parts, and then to say that the whole expression is merely the sum total of the constituent parts . In my judgment it is not necessary, in construing a statutory expression, to take leave of one's common sense. 62After adopting a commonsense approach to the understanding of the word "dwelling" when used in the definition of "transitional group home" in the SEPP it must be modified to operate harmoniously with the defined expression of which "dwelling" is but an element. 63I believe that the Council's approach to the meaning of the definition is misguided and based on a misunderstanding of the Court's reasoning in McAuley. The focus on two elements of the definition in cl42 of the SEPP namely; "dwelling" and "occupied by persons as a single household" results in an incorrect characterisation of this development. The Council's approach entirely ignores parts of the definition that inform the interpretation of the word "dwelling" as it appears in cl 42. 64While I accept that the "transitional group home" is required to be a "dwelling" the meaning of that term in the composite phrase is qualified by the provisions of paragraph (a) and (b) of the definition which determine both the manner of its occupation as a building and the purpose of its use. As discussed in McAuley at [65] that purpose is relevantly to provide "temporary accommodation...for drug and rehabilitation purposes", a requirement that could never satisfy the technical meaning of dwelling as discussed in Burwood Municipal Council v Aboriginal Hostels Ltd (1979) 39 LGRA 150 65When the definition is read as a whole it is apparent that a "transitional group home" anticipated by the SEPP is something different to a conventional dwelling or place of residence. Of necessity it involves an institutional aspect to its form in order to accommodate people on a temporary basis to undertake drug and alcohol rehabilitation: McAuley at [88]. Despite its differences to a conventional dwelling the proposed development will contain a suite of rooms that together are capable of being used as a separate domicile, albeit across a number of buildings. Nothing in the definition of "dwelling" identifies the necessity for the activity to be contained within a single building. The definition under review is directed to a purpose, use of land for the purpose of a "dwelling" can involve more than one building as fulfilling the purpose. 66In their totality, the suites of rooms proposed in this development contain facilities expected to be found within a dwelling: McAuley at [72] and [77]. Furthermore, the residents and carers will live together as inhabitants of a single household and as a single unit. They will share community of interest in seeking rehabilitation from drugs and alcohol, therapy sessions and supervised group activities, group recreation (Exhibit B pp. 258-263). There are communal living and dining rooms, kitchens and laundry facilities. Relevantly, the design elements discussed in Haddad at [53(a)], [53(b)], [53(c)] and [53 (d)]) said to indicate that the development is not a single household are absent in this case. There are no individual kitchens in bedrooms where a meal could be cooked and the occupants will be encouraged to share in chores and be involved in domestic activities as part of their rehabilitation. 67The accommodation is for a period of weeks not years and is therefore transitional and not permanent: Haddad at [59]. 68In my assessment the four essential characteristics identified by reference to the definition of a "transitional group home", in the SEPP, as discussed in McAuley, are established on the facts of this case: (AWS [15] - [32]. The proposed development fits squarely within the definition of a "transitional group home" under the SEPP. Conclusion 69My answer to the separate contention set out at [4] is that the proposed development is not prohibited. Therefore, I find that the Court has jurisdiction to determine the subject development application, including by the grant of development consent. 70I find that the proposed development is accurately characterised as a "transitional group home" as defined under the SEPP which is a permissible use of the land in the 1(a) zone under the LEP 1991, and a permissible use in the 7(a) zone by operation of the SEPP. 71Accordingly, the appeal is referred to the Registrar for further directions and to fix a date for the hearing of the merits of the application. Susan Dixon Commissioner of the Court Annexure A Annexure B 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. Decision last updated: 19 November 2014