The respondent in this case was in the process of constructing a building which was intended to be used for speciality disability accommodation for people with disabilities, who would be supported under the NDIS. Building approvals were in place, but there was no material change of use approval – in reliance on a particular carve out in the Planning Act and Planning Regulation for “community residences”. Council’s position was that a material change of use approval was required. The question was whether the building could be characterised as a “community residence” as defined by Schedule 6, Section 6 of the Planning Regulation, meaning it could not be made assessable development under Council’s planning scheme.
The definition of “community residence” was central to the case. A community residence is defined in the Planning Regulation to mean the use of premises for residential accommodation with (relevantly for this case) two important provisos:
- First, that the building provide accommodation for no more than six people who require assistance or support with daily living needs, and no more than one support worker.
- Second, that the use includes a building or structure that is “reasonably associated” with the residential accommodation use by the seven people identified above.
Council’s concern, with respect to the first element, was that the building included four two-bedroom units designed to be fully accessible by an SDA occupant. Conceivably, the units could accommodate eight occupants, plus a support worker.
Council’s concern with the second element was that the units had been designed to be fully self-contained. While there were communal areas such as a pool, the building otherwise contained separate units each with a living area, kitchen, laundry and patio as well as a guest bathroom and ensuite. The argument here was that the building was configured as four separate “community residences” rather than being a single residence.
On the second point, the Court noted that the definition of “community residence” did not require that there be a communal form of living – multiple residents were envisaged, but there is nothing limiting the use to a single dwelling. This could be contrasted with the definition of “community residence” under the now repealed Sustainable Planning Act which referenced a “dwelling” as well as “shared communal space”. The Court was satisfied that, whilst there might be more than one dwelling in the building, the use of the building remained a single “community residence”.
The evidence on the first point focused on the reasonableness of inclusion of a second bedroom and second bathroom in each unit, both fully compliant with the SDA standard. The Court observed that each unit should be fully accessible by the residents, and that the second bedroom and bathroom were capable of being used by a resident, in a manner consistent with the “community residence” use. For example, the second bedroom could be used for storage or an office.
The Court was not ultimately required to decide a third issue that arose during the hearing – of whether the use of the second bedroom for a visitor was “reasonably associated” with the “community residence” use. On the question of permanent (as opposed to visitor) accommodation of that second bedroom, the Court observed that the “community residence” definition placed a clear limit on both the type and number of persons using the building for residential purposes and that the use of the building for residential accommodation of persons who were not support workers or residents, such as family members, would be outside the scope of activities prescribed by the defined term.
While the building could be used in a manner that was unlawful, the Court was satisfied that the building was capable of being wholly used in a matter that was lawful. Her Honour was therefore satisfied that the building was capable of being used in a manner which complied with the definition of “community residence”” and that the respondents were not constructing a building that could not be used for a lawful purpose. There was no development offence, and the building approvals were lawful.