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Redland City Council v Boutique Capital Pty Ltd as Trustee[2024] QPEC 1

Redland City Council v Boutique Capital Pty Ltd as Trustee[2024] QPEC 1

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Redland City Council v Boutique Capital Pty Ltd as Trustee & Ors [2024] QPEC 1

PARTIES:

REDLAND CITY COUNCIL

(Applicant)

v

BOUTIQUE CAPITAL PTY LTD ACN 621 697 621 as Trustee under Instrument No. 721552472

(First Respondent)

KEY SPEC CONSTRUCTION PTY LTD ACN 612 441 568

(Second Respondent)

&

GEOFFREY ROBERT MITCHELL

(Third Respondent)

FILE NO/S:

3188/22

DIVISION:

Planning and Environment

PROCEEDING:

Originating Application

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

10 January 2024

DELIVERED AT:

Brisbane

HEARING DATE:

29, 30, 31 May 2023 & 1 June 2023

JUDGE:

McDonnell DCJ

ORDER:

Application dismissed

CATCHWORDS:

PLANNING AND ENVIRONMENT COURT – ORIGINATING APPLICATION – application for declarations – where applicant contends development approvals are void and of no effect – where applicant contends building work has been undertaken without required development permits – where applicant contends the use of premises is assessable development requiring an effective development permit – whether  a development  offence has been committed

CASES:

Briginshaw v Briginshaw (1938) 60 CLR 336

Dilworth & Ors v The Commissioner of Stamps and Anor [1899] AC 99

Fraser Coast Regional Council v Walter Elliott Holdings Pty Ltd [2017] 1 Qd R 13

International Litigation Partners Pte Ltd v Chameleon Mining NL (Receivers and Managers Appointed) & Ors [2012] HCA 45

MacFarlane v Burke, ex parte Burke [1983] 2 QdR 584

Mudie v Gainriver (2002) 2 Qd R 53

Slivak v Lurki (Australia) Pty Ltd (2001) 205 CLR 304

Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335

LEGISLATION:

Planning Act 2016 (Qld) s 44(6)(a), sch 2

Planning Regulation 2017 (Qld) s 6, sch 24

COUNSEL:

G J Gibson KC and K Wylie for the Applicant

A Skoien for the First and Second Respondents

No appearance for the Third Respondent

SOLICITORS:

McInnes Wilson Lawyers for the Applicant

CIF Lawyers for the First and Second Respondent

No Appearance for the Third Respondent

Introduction

  1. [1]
    The First Respondent owns land at 22 Danielle Street, Cleveland more particularly described as Lot 25 on RP 184463[1] (the Site).  The Second Respondent is in the process of constructing a building on the Site (the Building) which, when completed, is intended to be used for Specialist Disability Accommodation (SDA) for persons with disabilities, and who would be supported under the National Disability Insurance Scheme (NDIS).[2] 
  2. [2]
    On 14 July 2022, the Third Respondent issued a decision notice granting a development permit for building works for the Site for Stage 1, the footing and slab stage.[3]  On 16 August 2022 the Third Respondent issued a decision notice granting a development permit for building work for the Site for Stage 2, blockwork and first floor slab.[4]  On 24 August 2022, the Third Respondent issued a decision notice granting a development permit for building work for the Site for Stage 3, balance of works.[5]  These approvals purportedly comprise development permits for building work for buildings and structures on the Site.  The “Land Use” in those decision notices was described as “Community residence”.[6]  The construction of the Building has commenced and has purportedly been carried out pursuant to the decision notices, and in a manner consistent with the built form described in the drawings forming a part of the third decision notice (the Drawings).[7]
  3. [3]
    Neither the First Respondent, nor any other person, has applied to the Council for a development permit for material change of use to permit the future use of the Building.[8]  The First and Second Respondents (the Respondents) say such a permit is not required as the use is for Community residence.  Council disagrees.  The Council’s position is that development of the type proposed requires a development permit for material change of use. 
  4. [4]
    The Third Respondent did not enter an appearance in the proceedings.
  5. [5]
    The planning scheme in effect when the Third Respondent issued the decision notices was City Plan 2018 (V6.00/2022 effective 9 February 2022) (City Plan).  Both the Planning Regulation 2017 (Qld) (the Regulation) and the City Plan identify several uses that could conceivably permit delivery of SDA housing. Section 7 of the Regulation confirms that planning schemes may adopt only use terms prescribed in Schedule 3.  Of them, the following defined uses could conceivably be relied upon to deliver SDA housing:

Use

Definition

Community

Residence

  1. means the use of premises for residential accommodation—
    1. (i)
      no more than—
      1. (A)
        6 children, if the accommodation is provided as part of a program or service under the Youth Justice Act 1992; or
      1. (B)
        6 persons who require assistance or support with daily living needs; and
    1. (ii)
      No more than 1 support worker; and
  2. includes a building or structure that is reasonably associated with the use in paragraph (a).[9]

Dual occupancy

  1. means a residential use of premises involving—
    1. (i)
      2 dwellings (whether attached or detached) on a single lot or 2 dwellings (whether attached or detached) on separate lots that share a common property; and
    1. (ii)
      any domestic outbuilding associated with the dwellings; but
  2. does not include a residential use of premises that involves a secondary dwelling.

Dwelling house

means a residential use of premises involving—

  1. 1 dwelling and any domestic outbuildings associated with the dwelling; or
  2. 2 dwellings, 1 of which is a secondary dwelling, and any domestic outbuildings associated with either dwelling.

Multiple dwelling

means a residential use of premises involving 3 or more dwellings, whether attached or detached.

Residential care facility

Means the use of premises for supervised accommodation, and medical and other support services, for persons who—

  1. can not live independently; and
  2. require regular nursing or personal care.
  1. [6]
    The legislature has identified that a subset of these uses may not be made assessable development under a local planning instrument.  The consequence is that such a use would be accepted development,[10] with the effect that a development approval is not be required.
  2. [7]
    The relevant subset in this instance relates to Community residence uses that are consistent with the requirements prescribed by the Regulation Schedule 6, s 6, which provides:

“6. Material change of use for community residence

  1. A material change of use of premises for a community residence, if—
  1. the premises are included in a prescribed zone under a local categorizing instrument; and
  1. no more than 7 support workers attend the residence in a 24-hour period; and
  1. at least 2 car parks are provided on the premises for use by residents and visitors; and
  1. at least 1 of the car parks stated in (c) is suitable for persons with disabilities; and
  1. at least 1 car park is provided on the premises for use by support workers.”
  1. [8]
    The Site is in the Low density residential zone under the City Plan.[11]  The Low density residential zone is a prescribed zone.[12]  A material change of use for Community residence in the Low density residential zone is accepted development.  The Respondents contend that the proposed use is for Community residence.   If the proposal conforms with the definition of Community residence and s 6 of the Regulation, it is accepted development and a development permit for material change of use is not required. 
  2. [9]
    The principal issue for determination is whether the use is for a Community residence. 
  3. [10]
    The Drawings depict a two-storey building.  The ground floor comprises four enclosed garages, foyer, lift, two stairways, therapy pool and terrace for shared use, and two 2-bedroom units (Resident Unit).  The upper level comprises foyer, lift, two stairways, a multipurpose room for shared use, a single bedroom unit (Support Worker Unit) and two 2-bedroom Resident Units.[13]  The four Resident Units each contain an area labelled “bed 1” with an ensuite, with a hoist installed which may assist with the mobility requirements of future residents.  There is also an area labelled “guest” with a bathroom which is accessible from that room and from the living area.  In this second bedroom and bathroom there is provision for the installation of a hoist.[14]  In addition, each Resident Unit includes areas identified as living, kitchen, laundry and patio.  The four Resident Units are fully accessible by an SDA occupant.
  4. [11]
    The Support Worker Unit is to accommodate a support worker located away from but near Residents to provide scheduled and ad-hoc support.  

What are the issues in dispute?

  1. [12]
    Council submitted that the use of the Building will not fall within the exemption contained in Schedule 6 of the Regulation as the use of premises would not be for a Community residence because:
    1. the Building is not reasonably associated with the use of premises for residential accommodation for no more than six persons who require such assistance or support as each of the Resident Units have been designed, and are suited to, occupation by up to two persons requiring assistance or support with daily living needs; and
    2. the Building is configured as separate, self-contained apartments (or Community residences), rather than as a single residence.
  2. [13]
    The Respondents submitted that:
    1. properly construed, paragraph (b) of the definition of Community residence does not impose a restriction on the use described in paragraph (a) of the definition, but expands the scope of activities that can be included in a Community residence use;
    2. in any event, the Building can satisfy the test in paragraph (b) of the definition because it is reasonably associated with the provision of residential accommodation in paragraph (a) of the definition;
    3. even if the use of the Building would not constitute a Community residence under the Regulation:
      1. (i)
        the evaluative judgement required to determine the proper characterisation of the use means that there was no defect in the issue of the Building permits by the Third Respondent; and
      1. (ii)
        in the circumstances of the case, the Court should decline to grant any relief.
  3. [14]
    The Council seeks declarations and orders under s 11 of the Planning and Environment Court Act 2016 (Qld) (PECA), and enforcement orders under s 180(3) of the Planning Act, in relation to the development permits issued by the Third Respondent and building work for the Building.  The Council alleges that the development permits for building work issued by the Third Respondent are invalid and that the building work is unlawful because the intended use of the Building would be assessable development requiring a development permit under the Planning Act and no such development permit has been obtained.
  4. [15]
    The Court has a wide discretion to exercise.  The making of enforcement orders is a serious matter and requires me to be satisfied the orders are required.  The discretionary power is a wide one.  Guidelines for the exercise of the discretion were set out in Warringah Shire Council v Sedevcic,[15] and have been approved by the Queensland Court of Appeal.[16] 
  5. [16]
    The parties agreed the issues in dispute are:[17]

“1. Whether the start of the use of the building depicted in the decision notices for building work given by the Third Respondent dated 14 July 2022, 12 August 2022 and 24 August 2022 (the Decision Notices) for Lot 25 on RP184463 (THE Premises):

  1. Will not be for “community residence”, as that term is defined in the Planning Regulation 2017 (Qld) Regulation), because:
    1. (i)
      The built form comprising four self-contained two-bedroom units, with each of the bedrooms in the unit being of a largely identical size and having direct access to a largely identically sized bathroom, in addition to the self-contained studio on the upper floor, is reasonably associated with the use of premises for residential accommodation for:
  1. nine persons who require assistance or support with daily living needs;

Or

  1. eight persons who require assistance or support with daily living needs and one support worker;

such that the proposed use will not comply with the constraint set out in paragraph (b) of the definition of “community residence”; and/or

  1. to the extent it is contended that any one of the self-contained two bedroom-units is to be used by one person who requires assistance or support with daily living needs, the provision of a second largely identically sized bedroom in that unit, with an adjoining second largely identically sized bathroom, is not reasonably associated with that use, such that the proposed use will not comply with the constraint set out in paragraph (b) to the definition of “community residence”; and/or
  2. upon a proper construction, each of the four self-contained two-bedroom units, as well as the self-contained studio on the upper floor, comprises a “community residence”, such that the proposed use of the Premises would not comprise a single “community residence” use, or, in the alternative, would comprise five separate and discrete residences or dwellings; and/or
  3. paragraph (b) of the definition of “community residence” requires that the building in which the use is proposed to occur must be “reasonably associated” with the use of premises for residential accommodation for no more than seven persons, and the built form described in sub-paragraph 1(a)(i) above does not satisfy that requirement; and/or
  1. will not be accepted development, by reason of Schedule 6, Part 2, Item 6 of the Regulation, because that use of the Premises would comprise more than one residence or dwelling;
  1. If either of the paragraphs 1(a) or (b) is answered in the affirmative:
  1. whether the Decision Notices are void or otherwise invalid and of no effect, by reason of s 83(1)(a) of the Building Act 1974;
  1. whether building work carried out at the Premises purportedly pursuant to the Decision Notices was a development offence, pursuant to s. 163(1) of the Planning Act 2016 (PA);
  1. whether the start of the use of the Premises in the configuration purportedly authorised by the Decision Notices would be a development offence, pursuant to s. 163(1) of the PA;
  1. whether the Court should make declarations, pursuant to s. 11(1) of the Planning and Environment Court Act 2016 (Qld) (PECA), in respect of the matters set out in paragraphs 2(a), 2(b) and 2(c);
  1. whether the Court should order, pursuant to s. 11(4) of the PECA, that the Decision Notices are void or otherwise invalid and of no effect;
  1. whether the Court should make orders, pursuant to s. 180(3) of the PA:
  1. requiring the First and Second Respondents to cease carrying out building work on the Premises unless and until there is an effective development permit for that building work;
  2. directing the First and Second Respondent to return the Premises to a condition as near as practicable to the condition it was in immediately before the start of the building work purportedly approved by the Decision Notices;
  3. restraining the First Respondent from starting the use of the Premises in the configuration purportedly authorised by the Decision Notices for residential purposes unless and until there is an effective development permit for the use.”
  1. [17]
    The Council bears the onus of proof, to the civil standard, subject to the sliding scale recognised in Briginshaw v Briginshaw.[18] 
  2. [18]
    The Council does not contest the fact that the Building, when completed, would be well-suited for its intended use for disabled Australians.  It does not challenge the Respondents’ assertions that the provision of SDA is important and appropriate.  It does not contest the fact that facilities of this type can and should be delivered in the Redlands area. Instead, these proceedings concern whether the development at 22 Danielle Street, Cleveland conforms to the definition of Community residence in Schedule 24 of the Regulation, and therefore is accepted development that does not require a development permit for material change of use.

What is the meaning of ‘Community residence’?

  1. [19]
    In construing the definition of Community residence, the Respondents submitted that:
    1. the Court should not impute to the Queensland legislature ignorance of the NDIS under Federal legislation and the regime established for the improvement of accommodation and services for people living with a disability under that legislation; and
    2. on the proper reading of the Regulation, satisfaction of paragraph (a) of the definition of Community residence would be sufficient to establish that the Proposed community residence is a Community residence.  It said that is because a provision such as paragraph (b) of the definition of Community residence in the Regulation is not generally to be read as a limit on the ordinary meaning of the definition or the terms of paragraph (a), but as an enlargement of the matters that fall within the scope of a Community residence. 
  2. [20]
    The Council submitted that two aspects of the definition are apparent:
    1. first, the use of the word ‘and’ at the end of sub-paragraph (a)(ii) indicates that, to fall within the defined of Community residence, the requirements of both paragraphs (a) and (b) must be satisfied; and
    2. secondly, the requirements of (a) and (b) are different:
      1. (i)
        paragraph (a) requires an assessment to determine the number and type of occupants of the Building at any given time.  Council acknowledged that, prior to the commence of the use, it may be premature to assess this part of the meaning; but
      1. (ii)
        paragraph (b) requires consideration of the nature of the building or structure, and whether it is “reasonably associated with” the use of the Site that constrains the type and number of future residents in the manner described in paragraph (a).  Thus, what is meant by “reasonably associated with” must be determined.
  3. [21]
    Many of the expert witnesses referred to the NDIS Specialist Disability Accommodation Design Standard Edition 1.1 dated 25 October 2019 (the SDA Standard) in giving their evidence.   The SDA Standard sets out the detailed design requirements to be incorporated into new build SDA under the NDIS.  To recognise the varying degrees of disability, the SDA Standard recognises design categories of High Physical Support (HPS), Fully Accessible, Robust and Improved Liveability.[19]  It sets out the minimum design requirements for each design category.[20]  The experts adopted terminology from the SDA Standard. 
  4. [22]
    The Respondent fell short of submitting that regard should be had to the NDIS.  Such an approach would be an error.  The Court is tasked with determining whether the use complies with the definition of Community residence.  That definition makes no reference to the NDIS or the regime for the improvement of accommodation and services for people living with a disability under the Federal legislation.  The NDIS is not a benchmark.  Compliance with the NDIS regime is not relevant to whether the use meets the definition of Community residence.  The NDIS is different to the planning regime.
  5. [23]
    The Building can be used for people with a level of disability up to HPS.[21]  By designing the Building to accommodate HPS participants, maximum flexibility is achieved as residents requiring lesser support can be accommodated within HPS compliant accommodation. 
  6. [24]
    The Respondents referred the Court to a number of authorities to say that ‘includes’ in paragraph (b) of the definition of ‘Community residence’ enlarges the matters falling within the scope of a Community residence to include ‘not only such things as [defined terms] signify by their natural import, but also those things which the interpretation clause declares they shall include’.[22]  However, this approach failed to have regard to the use of ‘means’ in the definition.  The definition does not seek to extend the natural meaning of Community residence.  Rather, it defines the term. 
  7. [25]
    The use of the phrases “means” and “includes” in a definition was considered by the High Court in International Litigation Partners Pte Ltd v Chameleon Mining NL (Receivers and Managers Appointed)  Ors[23] in which the Court observed:

“The use in this way of the concept ‘means and includes’ is to avoid any doubt that what is identified by the inclusion falls within the scope of the designated meaning of [the word being defined]’.[24]

  1. [26]
    Adopting that approach, which I accept, ‘Community residence’ means the use of premises for residential accommodation for no more than six persons who require assistance or support with daily living needs (Residents) and no more than one support worker, and to avoid any doubt includes “a building or structure that is reasonably associated with that use”.
  2. [27]
    The requirement in paragraph (a) provides a clear limit on both the type and number of persons using the Building for residential accommodation.  It permits the accommodation of no more than six Residents and no more than one support worker.  In my view, it follows that the use of the Site for residential accommodation of persons who are not support workers or Residents, such as family members, is outside the scope of activities prescribed by the defined term.  A person, including family members of Residents, may not use the Building for residential accommodation unless both the number and type criteria in paragraph (a) are satisfied.  This is evident as no more than seven persons who satisfy particular criteria may be accommodated.  Because there is a cap on the number and the type of persons, I do not accept that the use of the Building for residential accommodation for people other than those satisfying both criteria are reasonably associated with the use. 

What is the meaning of ‘reasonably associated with’?

  1. [28]
    While the Respondents originally submitted that “reasonably associated with” should be construed as meaning “fairly and sensibly connected with”, they ultimately submitted that “reasonably associated with” meant logically connected to the use.[25]
  2. [29]
    The phrase has not been construed by relevant authority in context.  The following caselaw provides general guidance as follows:
    1. In Slivak v Lurki (Australia) Pty Ltd (2001) 205 CLR 304, Gaudron J (in the minority, but not on this point), confirmed that a similar phrase “reasonably practicable” must be given its ordinary meaning, her Honour explaining (footnotes removed):

“The words ‘reasonably practicable’ have, somewhat surprisingly been the subject of much judicial consideration.  It is surprising because the words ‘reasonably practicable’ are ordinary words bearing their ordinary meaning.  And the question whether a measure is or is not reasonably practicable is one which requires no more than the making of a value judgement in the light of all the facts.  Nevertheless, three general propositions are to be discerned from the decided cases:

  • the phrase ‘reasonably practicable’ means something narrower than ‘physically possible’ or ‘feasible’;
  • what is ‘reasonably practicable’ is to be judged on the basis of what was known at the relevant time;
  • to determine what is ‘reasonably practicable’ it is necessary to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert that risk.”[26]
    1. In Deal v Father Pius Kodakkathanath (2016) 258 CLR 281, the Court was required to consider whether a medical disorder was “associated with” a task undertaken by an employee, and provided the following guidance (footnotes removed):

“[36] Whether the risk of musculo-skeletal disorder was ‘associated with’ that manual handling task depends on the way in which reg. 3.1.2 should be construed…

[37] By contrast, the majority’s requirement of ‘close connection’ appears to be influenced more by what their Honours considered should be the appropriate scope of regs. 3.1.1, 3.1.2 and 3.1.3 than by the legislative purpose as it is to be derived from the text, context and purpose of the legislation.  If so, it suggests the kind of error, against which this court has warned on more than one occasion, of a approaching the task of statutory construction by reference to what a judge might regard as desirable policy, imputing that to the legislation and then characterising that as the purpose of the legislation.”

  1. [30]
    It is appropriate to objectively analyse the drawings.[27] 
  2. [31]
    In considering the ordinary of the meaning of the phrase, the Macquarie Dictionary defines the terms as follows:
    1. the term “reasonable” is defined as meaning:

“1. Endowed with reason;  2. Agreeable to reason or sound judgement:  a reasonable choice; …”

  1. the term “associate” is defined as:

“1. To connect by some relation, as in thought….3.  to unite; combine: coal associated with shale. … 9. Anything usually accompanying or associated with another; an accompaniment or concomitant. …14. Allied; concomitant.”

  1. [32]
    It is also relevant to have regard to the legislative intent of the Planning Act.  Section 3 confirms that the Act’s purpose is to establish an “efficient, effective, transparent, integrated, coordinated and accountable system of land use planning…, development assessment and related matters that facilitates the achievement of ecological sustainability”. 
  2. [33]
    Section 83 of the Building Act 1975 provides that private building certifiers must, prior to granting building development approvals, satisfy themselves that all other necessary approvals are in effect. 
  3. [34]
    I accept, consistent with the caution expressed in Deal, that matters of policy are not relevant in construing the meaning of “reasonably associated with”.  The phrase “reasonably associated with” suggests a connection or nexus with the use of the premises for residential accommodation for no more than six Residents and no more than one support worker.

The evidence

  1. [35]
    Ms Muller designed the Building in accordance with the brief she was given.  This brief was to design a building on the block to accommodate the units.[28]  Ms Muller said the design meets the National Construction Code and the SDA Standard although she accepted that the SDA Standard does not require either a second bathroom for visitors or a second bedroom in the event a single resident were to occupy each unit.[29]  In her experience, the SDA Standard falls short in meeting the needs of the user.[30]  She considered the design of the Building reflected the minimum requirement for a fit for purpose home for a HPS needs NDIS participant.[31]  She opined that the size of the guest bedroom and bathroom provide maximum choice and flexibility for the user,[32] a view shared by Ms Humphrey.[33]  Ms Muller said in the ensuite there is storage available for small items and limited storage in the guest bathroom.[34] However, the design does not accommodate sufficient storage for toileting and personal hygiene items in the bathroom and ensuite.
  2. [36]
    Ms Muller’s opinion about the reasonableness of this Building is informed by her opinion that it is unreasonable that NDIS participants live alone, without the right to have other family members and guests occupy the second bedroom.  Her views are associated with laudable social values.  However, this approach fails to have regard to the definition of Community residence.  Ms Muller assumed that a family member who does not satisfy the criteria in paragraph (a) may use the Building for residential accommodation.  For the reasons set out above, this is not correct.
  3. [37]
    The Respondents accepted that the Resident Units are capable of providing residential accommodation for eight Residents who require either HPS or Fully Accessible accommodation.  Use of the Building by eight Residents would not comply with the definition of Community residence.  Just because the Building can physically accommodate eight Residents does not mean that the Building is not reasonably associated with the use by no more than six Residents.  The Respondents said that they do not propose to use the Building to provide residential accommodation for more than six Residents and a single support worker.[35]  The intention of the Respondents is not determinative for reasons including that they may not be the ultimate operator. 
  4. [38]
    It was common ground that the design of the Building accommodated residents that require HPS and could also be used to provide residential accommodation for residents with lesser levels of disabilities.[36]  Housing for HPS participants has all the features of Fully Accessible accommodation, plus emergency back-up power and a ceiling capable of accommodating a ceiling hoist.  It may also have an intercom connecting the user to a nearby support worker and assistance technology such as voice or device activated doors, lights and heating.[37]  Nor was it controversial that the support needs of Residents can vary significantly and for an individual Resident may also vary from time to time.[38]
  5. [39]
    Mr Nolan, a director of DHI Fund Management, the fund manager and developer of the Site, gave evidence.  He said that DHI Fund Management is concerned with apartments intended for occupation by persons requiring daily care and support who are participants in the NDIS.  The apartments are designed and constructed to comply with the SDA Standard.[39]  He gave unchallenged evidence that there is minimal financial incentive to place more than one Resident in each Resident Unit.  He opined that the spare bedroom could be used for a sleeping area for a guest or carer, storage, treatment area, and remote office. 
  6. [40]
    Ms Humphrey, a disability consultant with experience ascertaining the needs of NDIS participants who are living with a disability, and caring for her own severely disabled daughter, gave evidence for the Respondents.  She said that it was intended to accommodate four Residents in the Building, but that it could be more if necessary.  Although the Resident Units complied with the SDA Standard, she doubted whether each Resident Unit could accommodate 2 Residents.  The potential for the second bedroom and bathroom to accommodate a hoist was explained as providing flexibility for the Resident.  Her evidence was that all areas of the home should be wheelchair accessible, so that the Resident could fully access their home.  
  7. [41]
    Ms Humphrey opined that a Resident may require a second bedroom to accommodate partners, to accommodate family or friends on a temporary basis, to provide a workspace for a work from home arrangement, to provide for the needs of a support worker, to store equipment (including toilet/shower commode, recliner chair, mobile floor hoist, standing or walking frame, back-up wheelchair, sporting and physiotherapy equipment, specialist massage tables or other treatment devices) and storage of consumables (including incontinence supplies, enteral feeding equipment, ventilator equipment, dressing packs).  She considered the spare room not only reasonably consistent with SDA housing, but essential to a Resident and their support workers generally.[40]  She opined that “removal of the spare room (bedroom, utility room or otherwise) in the Danielle Street Building, would render the building uninhabitable for many, if not, all HPS Participants.  Ms Humphrey opined that the toilet in the ensuite is not well suited to use by an able-bodied person.   
  8. [42]
    Mr Barry, a disability consultant, undertakes SDA eligibility assessments of individuals addressing housing needs and disability related supports and gave evidence for the Respondents.  He considered it unsafe and undesirable for the required equipment identified by Ms Humphrey to be stored in the occupant’s bedroom or bathroom because it would be difficult for the Resident to navigate around the equipment and also because much of the equipment should be kept dry.  He considered a second bedroom reasonable for reasons associated with the Residents’ disability related needs and circumstances.  This included the provision for storage, accommodation for visitors, being formal and informal support and non-support visitors, and working from home.  In his opinion, the second bathroom was necessary for the personal hygiene needs of the support worker and beneficial for the HPS participant, reducing health risks to which they are susceptible due to many having vulnerable health. 
  9. [43]
    Mr Beirne, a resident in similarly designed accommodation, gave evidence that his two children live with him.  He considered it desirable that the second bedroom be fully accessible as this would allow him to spend time with his children in their room and to clean the room.[41]  Mr Beirne gave evidence that he used multiple mobility and assistive devices and it was preferable that these items and items for regular personal care are readily available to him.  By being stored within his unit he is assured of ready access to them for daily living.[42]  To store them in a location such as a garage adversely impacted his ability to access those items.  It was not in dispute that privacy during some of Mr Beirne’s daily routines is important, nor that some personal routines require an extended period of time, indeed hours, to complete. 
  10. [44]
    Both Mr Beirne and Ms Davis gave evidence that they worked from home.  Ms Davis works from home three days a week performing receptionist and accounting tasks.[43]  
  11. [45]
    Ms Scudamore, an occupational therapist with experience in assessing housing and support requirements for individual with high support needs, gave evidence for the Council.  Ms Scudamore suggested that a secure garage could be a reasonable storage space for a back-up or community mobility equipment, back-up hoist, consumables and physiotherapy equipment.[44]  The plans show storage space is allocated in the garages.  She opined that the need for the second bedroom to accommodate storage, an area for therapy and a support worker’s needs could be met by a smaller room that was still accessible to the resident – it did not need to meet the same design requirements as the main bedroom.[45]  In her view, residential accommodation for persons with a disability would ideally include a toilet in addition to the resident’s bathroom.[46]  She considered a toilet would suffice unless the support worker was required to stay at the Resident’s unit in which case it would be preferable that they had access to separate bathroom facilities.[47]  In those circumstances, the second bathroom could be smaller and may not need to be accessible to the resident.[48] 
  12. [46]
    Mr Tolliday, an access consultant, is responsible for assessing whether buildings comply with the SDA Standards.  He gave evidence on behalf of the Council.  He opined that if each Resident Unit is occupied by a single participant, the inclusion of a second bedroom and second bathroom which both meet the SDA Standard is not necessary.  He opined that many HPS residents would benefit from a second bedroom in their apartment.  Whether a resident requiring HPS needs a second bedroom depended upon needs of the particular resident and the opportunities in the apartment for storage of equipment.  He considered a second bathroom could reasonably be smaller in scale than the primary bathroom provided the opening size of the doorways complied with the SDA Standard.   

Is each Resident Unit a Community residence?

  1. [47]
    The Council submitted that the proposal does not accommodate a communal form of living in a single dwelling which it said might reasonably be expected as the definition is Community residence, but rather comprised four self-contained apartments or Community residences.
  2. [48]
    The Council submitted that each of the Resident Units:
    1. comprises a “dwelling”, as that term is defined in Schedule 24 of the Regulation:[49]

“Dwelling means all or part of the building that—

  1. is used, or is capable of being used, as a self-contained residence; and
  2. contains—
    1. (i)
      food preparation facilities; and
    2. (ii)
      a bath or shower; and
    3. (iii)
      a toilet; and
    4. (iv)
      a wash basin; and
    5. (v)
      facilities for washing clothes.”
  1. [49]
    The definition of Community residence refers to the use of ‘premises’ which can include part of a building.[50]  The Council submitted that, because each Resident Unit is a self-contained dwelling, the use of the Building falls outside what comprises a single Community residence. 
  2. [50]
    This approach requires the reading of words into the definition.  The definition does not require that there be a communal form of living in the development.  Multiple residents are envisaged in a Community residence, but there is nothing in the definition limiting the use to a single dwelling.  Irrespective of the number of dwellings, the use remains a Community residence.  I am satisfied that, whilst there might be more than one dwelling in the Building, the use of the Building remains a single Community residence. 
  3. [51]
    This construction is supported by a consideration of the previous definition of community residence, albeit that this was under preceding legislation, the Sustainable Planning Act 2009 (Qld).   Prior to the introduction of the Regulation, Schedule 26 of the Sustainable Planning Regulation 2009 (Qld) provided that “Community residence means a community residence as defined in the standard planning scheme provisions”.  The standard planning scheme provisions defined “community residence” as ‘any dwelling used for accommodation for a maximum of six persons who require assistance or support with daily living needs, share communal spaces and who maybe unrelated”.  The present definition makes no reference to dwelling nor shared communal space.  It could have but did not.     

Is the proposed development a ‘Community residence’?

  1. [52]
    It is apparent that there are a very broad range of disabilities and abilities for people who may seek to utilise accommodation such as this.  Thus, the needs are participant dependent.  I accept that facilities for the HPS participants will also be suitable for participants with lower-level needs.  To be accepted development, no more than seven support workers may attend the premises in a 24 hour period.  
  2. [53]
    The evidence focussed on the reasonableness of the provision of a second bedroom and second bathroom in each Resident Unit, both of which are fully complaint with the SDA Standard.  The second bedroom and bathroom in a Resident Unit can accommodate a second Resident.  I accept the evidence of Ms Scudamore that some residents may desire to share a Resident Unit.  This was supported by Mr Nolan’s evidence of other premises with which he has been involved which specifically target multiple residents in a single unit. 
  3. [54]
    While some community mobility equipment may be able to be stored in the garages, the evidence which I accept established that other items of mobility equipment, physiotherapy equipment, consumables and items for daily care are reasonably located proximate to the Resident in the unit.  These items are best kept dry.  The use of the second bedroom for storage of such items, or for therapy for the Resident, is relevant to their daily living and so I am satisfied are reasonably associated with their residential accommodation in the Resident Unit.  If there was no second resident in a Resident Unit, the second bathroom could be utilised by a support worker during the course of providing support to the Resident.  These uses have a clear nexus with the residential accommodation in the Building of people who require assistance or support with daily living needs. 
  4. [55]
    The evidence of Mr Tolliday and Ms Scudamore was that the second bedroom and bathroom in a 2 bedroom, 2 bathroom unit for a single Resident may be smaller than what is proposed.  Ms Scudamore suggested it need not be accessible to the Resident.  I disagree.  There are many reasons why a Resident may need to go into the second bedroom or bathroom of the home.  Perhaps to clean or to open the bedroom window.  I am satisfied that those parts of the Building included to enable the Resident to be able to fully access their accommodation are reasonably associated with the use in paragraph (a) as there is a relevant nexus with the Residents’ residential accommodation.  I am satisfied that all areas of the Resident Unit should be accessible by the Resident; that fully accessible rooms are reasonably associated with the use of that accommodation by the Resident. 
  5. [56]
    The evidence, which I accept, establishes that the second bedroom and bathroom in each Resident Unit is capable of being used for the purposes of residential accommodation for a Resident or in a manner reasonably associated with the use in paragraph (a).  The Building can be used in a manner which is unlawful.  However, the Building is capable of being wholly used in a manner which is lawful.   
  6. [57]
    For these reasons, I am satisfied that the Building is capable of being used in a manner which is compliant with the definition.  The Respondents are not constructing a Building that cannot be used for a lawful purpose.  The Council has not established otherwise.
  7. [58]
    As I am satisfied that the Building can be lawfully used as a Community residence and that the Building comprises a single Community residence, I am not satisfied that a development offence has been committed or will be committed.   

Is the use of the Building by visitors ‘reasonably associated with’ with the use in paragraph (a) of the definition of ‘community residence’

  1. [59]
    In the course of the hearing, the issue arose as to whether the use of the second bedroom and second bathroom by visitors, guests, relatives, overnight support workers etc. could be reasonably associated with the use in paragraph (a) of the definition of ‘community residence.’[51]  The Council took the position that, while the use of the second bedroom for a visitor might be reasonable, it was not reasonably associated with the use in paragraph (a).[52]  As I am satisfied that the Building can be lawfully used, it is not necessary to determine this issue.

Conclusion

  1. [60]
    The Council has not discharged the onus.  The application is dismissed. 

Footnotes

[1]  Ex. 7, LGA CEO’s Certificate, 15 – 16.

[2]  Ex. 20.7, Affidavit of Kevin Nolan.

[3]  Ex. 7, LGA CEO’s Certificate, Decision Notice, 186 – 189, Engineering Plans, 191 – 204.

[4]  Ex. 7, LGA CEO’s Certificate, Decision Notice, 211 – 216, Architectural and Engineering Plans, 217 – 250.

[5]  Ex. 7, LGA CEO’s Certificate, Decision Notice, 257 – 263, Architectural and Engineering Plans, 264 – 297.

[6]  Ex. 7, LGA CEO’s Certificate, 186, 211, 257.

[7]  Ex. 4, Book of Plans.

[8]  Ex. 5, First PECA CEO’s Certificate, [2(a)]-[2(b)].

[9] Planning Regulation (Qld) 2017, Sch 24 (‘The Regulation’).

[10] Planning Act 2016 (Qld), s 44(6)(a) (‘Planning Act’).

[11]  Ex. 7, CEO LGA Certificate, [2].

[12]  The Regulation, Sch 6, s 6(2).

[13]  Ex. 4, Book of Plans, 6 and 7.

[14]  T3-50, [14].

[15] Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335, 339 – 341.

[16] Mudie v Gainriver (2002) 2 Qd R 53, 58 – 59.

[17]  Ex. 2, Agreed List of Issues in Dispute.

[18]  (1938) 60 CLR 336.  See also Caloundra City Council v Taper Pty Ltd & Anor [2003] QPELR 558 [14] as approved in Booth v Yardley [2007] QPELR 229 [17].

[19]  Ex. 16, Affidavit of Mr Tolliday, 20.

[20]  Ex. 16, Affidavit of Mr Tolliday, 21.

[21]  Ex. 20.2, Affidavit of Ms Humphrey, [29].

[22] MacFarlane v Burke, ex parte Burke [1983] 2 QdR 584; Dilworth & Ors v The Commissioner of Stamps and Anor [1899] AC 99; Outline of Submissions on behalf of the First Respondent and the Second Respondent [22].

[23]  [2012] HCA 45.

[24] International Litigation Partners Pte Ltd v Chameleon Mining NL (Receivers and Managers Appointed) & Ors [2012] HCA 45, [26].

[25]  T4 – 20, l 31 – T4 – 21, l 5.

[26] Slivak v Lurki (Australia) Pty Ltd (2001) 205 CLR 304,  [53].

[27] Fraser Coast Regional Council v Walter Elliott Holdings Pty Ltd [2017] 1 Qd R 13.

[28]  T3-55 [25]-[27].

[29]  T3-68 [24]; T3 – 68[32].

[30]  Ex. 20.1, Affidavit of Ms Muller, 6 [15].

[31]  Ex. 20.1, Affidavit of Ms Muller, 11 [26].

[32]  Ex. 20.1, Affidavit of Ms Muller, 9 [24].

[33]  T3-46 [26]-[30].

[34]  T3-64 [31]–[35].

[35]  Ex. 39, Outline of Submissions on behalf of the First Respondent and the Second Respondent dated 1 June 2023, [45].

[36]  Ex. 20.2, Affidavit of Ms Humphrey, [28]; Ex. 18, Affidavit of Ms Scudamore, 8 [5.1].

[37]  Ex. 18, Affidavit of Ms Scudamore, 8 [5.3].

[38]  Ex. 18, Affidavit of Ms Scudamore, 7 [4.3]; Affidavit of Ms Humphreys 8 [27].

[39]  T3-19 [45] - T3-20 [9]. 

[40]  Ex. 20.2, Affidavit of Ms Humphrey, 66 [77].

[41]  T3-13 [34]-[43].

[42]  T3-13 [30]-[33].

[43]  Ex 20.4. Ms Davis’ Affidavit, [8].

[44]  Ex. 18, Affidavit of Ms Scudamore, 9 [5.12].

[45]  T2-10 [22].

[46]  T2-20 [3]-[4].

[47]  T2-20 [35]; T2-21 [6].

[48]  T2-21 [30]-[34].

[49]  Ex. 11, Mr Ovenden’s Affidavit, Report, [5.14]; The Regulation, sch 24, (definition of ‘dwelling’), Ex. 19. Bundle of Legislation, 136.

[50]  Planning Act, sch 2 (Definition of ‘building’), (Definition of ‘premises’).

[51]  T1-28 [28]-[31]; T1-32 [34]; T4-8 [6]-[44]; T4-9 [35]-[40]; T4-35 [36] – T4-36 [19].

[52]  Ex. 38, Outline of Submissions on behalf of the Applicant dated 1 June 2023, 19 [22(a)].

Close

Editorial Notes

  • Published Case Name:

    Redland City Council v Boutique Capital Pty Ltd as Trustee & Ors

  • Shortened Case Name:

    Redland City Council v Boutique Capital Pty Ltd as Trustee

  • MNC:

    [2024] QPEC 1

  • Court:

    QPEC

  • Judge(s):

    McDonnell DCJ

  • Date:

    10 Jan 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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