Dwelling house or dual occupancy under the Bundaberg Regional Council Planning Scheme 2015?

In brief

The case of Lalis v Bundaberg Regional Council [2018] QPEC 026 involved an appeal to the Planning and Environment Court by the Appellant against the decision of the Bundaberg Regional Council (Council) to give an enforcement notice under section 168 of the Planning Act 2016 (Planning Act) in respect of the Appellant's land in Kalkie.

The enforcement notice alleged that the Appellant had committed development offences under the Sustainable Planning Act 2009 (SPA) and was continuing to commit development offences under the Planning Act, by carrying out assessable development, being the construction of two separate dwellings on the land (Dwelling A and Dwelling B), without all necessary development permits.

The Appellant argued that the land was lawfully being used as a "dwelling house" (including a secondary dwelling) and all relevant permits were in place. The Council's position was that the land was being unlawfully used for a "dual occupancy", as the Appellant did not have the necessary development permits.

The Appellant also submitted that the Court should use its discretion to set aside or stay the enforcement notice, if the Court determined that the use of the land was unlawful.

The Court held as follows:

• the land was being used for a "dual occupancy", and not a "dwelling house" and associated "secondary dwelling";
• there were no discretionary reasons to support setting aside the enforcement notice or staying its operation, rather "there are, in fact, strong discretionary reasons that favour the Council receiving relief, including that there is a legislative purpose of upholding the planning law" (at [86]).

The Court dismissed the appeal and considered the following issues in making that finding:
whether the land included a "secondary dwelling";

whether the smaller Dwelling B was used "in conjunction with, and subordinate to" Dwelling A; and

whether the Court should exercise its discretion to set aside or stay the enforcement notice.

The Court determined that it would separately hear from the parties about appropriate orders to be made.

Lawful use of the land for a "dwelling house"

A primary consideration was whether the land contained a "secondary dwelling".

The land is included in the Low Density Residential zone under the Bundaberg Regional Council Planning Scheme 2015 (Planning Scheme). It was accepted by the Appellant that the development of Dwelling A and Dwelling B on the land was not compliant with all acceptable outcomes of the Dual Occupancy Code. Relevantly, in this zone:

• a "dwelling house" was exempt development before 3 July 2017 when the Planning Act 2016 commenced and is accepted development from 3 July 2017; and
• where the development is not compliant with all acceptable outcomes of the Dual Occupancy Code, a "dual occupancy" was code assessable development both before and after 3 July 2017.

Therefore, if the land contained a "secondary dwelling", the use would be lawful as it would be considered to be a "dwelling house". However, if the use of the land did not include a "secondary dwelling", the use would not be classified as a "dwelling house", but a "dual occupancy" (which includes "premises containing two dwellings, each for a separate household, and consisting of: a single lot, where neither is a secondary dwelling or…" (at [22]).

A "secondary dwelling" is defined in the Planning Scheme as follows [our emphasis]:

 "A dwelling used in conjunction with, and subordinate to, a dwelling house on the same lot. A secondary dwelling may be constructed under a dwelling house, be attached to a dwelling house or be free standing" (at [21]).

Relevantly, the Court considered whether the smaller Dwelling B was used "in conjunction with, and subordinate to" Dwelling A.

Court considered the meaning of "in conjunction with"

In considering the term "in conjunction with", the Court had regard to the following:

(a)  the ordinary meaning of the term, being a joint enterprise, union or common purpose;

(b)  the relevant Macquarie Dictionary definitions; and

(c)  the judicial consideration of the phrase.

 The Court noted that in Forde v Toowoomba Regional Council [2008] QPEC 114, the Court had considered the phrase "…the establishment of commercial stables in conjunction with houses…" and had cited a passage from Sweeney Pastoral Company v Snowy River Shire Council [1993] NSWLEC 189 as follows "..."in conjunction with" denotes a connection or relationship or association, a quality which it is convenient to refer to as a "nexus"….The clause requires the nexus to be between two uses. It is a question of function and accordingly, it is a functional nexus which is required."

The Appellant argued that Dwelling B is a "secondary dwelling" being used "in conjunction with" and subordinate to Dwelling A for a number of reasons. These included the following (at [52]):

(a)  they have the same driveway;

(b)  they are located on the same parcel of land;

(c)  they are structurally integrated by a common wall; and

(d)  Dwelling B has a smaller floor area.

The Court found that these arguments focussed on the built form of the dwellings and held that they did not demonstrate that the dwellings were being used "in conjunction with" each other. The Court also did not accept the Appellant's submission that "the use of the word "conjunction", when used in this definition, shifts the focus only to the built form, rather than the use" (at [53]).

The Appellant also argued that there was a functional nexus between the dwellings because there was a common driveway and structural integration of the dwellings. The Court did not accept the Appellant's submission and held that "structural dependence does not demonstrate that one use is subordinate to the other or that there is a functional nexus between them" (at [55]), and "there is no relevant nexus or functional connection between the two dwellings. Each dwelling is used in a discrete and independent manner, separate to the other. Both dwellings have been let and tenanted separately and there is no evidence of any joint endeavours between the households" (at [56]). The Court consequently decided that the two dwellings were not used "in conjunction with" each other.

The Court gave an example of how the two dwellings could be used "in conjunction with" each other, being if an extended family lived across the two dwellings to allow certain family members independence, however, the family generally operated as a single household unit.

Court considered the meaning of "subordinate"

The Court stated that for Dwelling B to be considered as a "secondary dwelling", it must also be subordinate to a "dwelling house" on the same lot. The Court referred to the Macquarie Dictionary definition of "subordinate" (including "placed in or belonging to a lower order or rank; of lesser importance; secondary") (at [58]) and "subordinate to" (including "to make secondary to; to make subject or subservient to") (at [59]). The Court discussed the differences in floor area between Dwelling A and Dwelling B, however, also noted that "built form is only one consideration. In terms of use, there is no indication that one dwelling is subordinate to the other" (at [61]).

The Court decided that the smaller Dwelling B was not being used "subordinate" to the larger Dwelling A. Consequently, the Court held that the land was being used unlawfully for a "dual occupancy" and not as a "dwelling house" and associated "secondary dwelling".

Discretionary grounds to set aside enforcement notice

The Appellant submitted that a number of factors were relevant as to why the Court should use its discretion to set aside or stay the enforcement notice. These included the following (at [68]):

(a)  the use of the land had the benefit of a development approval and it should not be suggested that the use was conducted recklessly;

(b)  the use is a "benign" use that is residential in character and is anticipated within residential areas;

(c)  the dual occupancy/dwelling house issue appears widespread; and

(d)  the matter involves complicated issues of statutory interpretation.

The Court acknowledged that it did not regard the Appellant's use of the land to be deliberately in defiance of the planning law. However, the Court did note that the Appellant's approval was for building works, which contained conditions limiting the ambit of the building works to use as a dwelling house with a secondary dwelling, and the Appellant had decided not to seek advice to ensure compliance with the conditions.

The argument that the use is a "benign" use was rejected by the Court, as a "dual occupancy" use has a higher level of assessment than a "dwelling house", notwithstanding that the use may be residential in character. The Court considered (at [75]) the report drafted by the Council's town planner about why the levels of assessment and use rights are significant, which included considerations such as "essential service infrastructure capacity and planning; and amenity and expectations". For the reasons outlined in the report, along with correspondence Council had received from concerned residents from the area about "secondary dwellings" being built in the area and rented out as two separate dwellings, the Court gave this discretionary factor little weight.

The Court was also not persuaded by any of the Appellant's other arguments and held that no discretionary reasons warranted an order be made for setting aside the enforcement notice or staying its operation, rather "there are, in fact, strong discretionary reasons that favour the Council receiving relief, including that there is a legislative purpose of upholding the planning law" (at [86]).

The Court dismissed the appeal and determined that it would separately hear from the parties about appropriate orders to be made.