In brief

The case of Redland City Council v Boutique Capital Pty Ltd as Trustee & Ors [2024] QPEC 1 concerned an originating application to the Planning and Environment Court of Queensland by the Redland City Council (Council) for declarations and enforcement orders in respect of the building work which the Council alleged was being carried out unlawfully (Building Work) at 22 Danielle Street, Cleveland (Site) for construction for specialist disability accommodation (SDA Housing).

The principal issue for determination was whether the proposed SDA Housing met the definition of "community residence" in schedule 24 of the Planning Regulation 2017 (Qld) (Regulation).

In determining the issue, the Court considered a number of subsidiary questions, including:

  1. What is the meaning of "community residence"?

  2. What is the meaning of "reasonably associated with"?

  3. Is the proposed development a "community residence"?

The Court found that the proposed use for the SDA Housing was a use for a "community residence", and therefore was accepted development. No development offence had been committed, and the Council's application was dismissed.

Background

The Council made the application for declarations and orders under section 11 of the Planning and Environment Court Act 2016 (Qld) and enforcement orders under section 180(3) of the Planning Act 2016 (Qld) against three respondents. The First Respondent is the owner of the Site on which the SDA Housing was to be constructed, the Second Respondent is the construction company which was in the process of undertaking the Building Work, and the Third Respondent is responsible for issuing three decision notices which granted approval for three stages of the Building Work.

The Council submitted that the Building Work for the construction of the SDA Housing would involve a material change of use which requires a development permit from the Council. The First and Second Respondents (Respondents) argued that the proposed use was a "community residence" which does not require a development permit from the Council. The Third Respondent did not enter an appearance in the proceedings.

Section 7 of the Regulation allows for use terms prescribed in schedule 3 to be adopted into planning schemes. Schedule 24 of the Regulation provides the following definition for "community residence":

"community residence—

(a)   means the use of premises for residential accommodation for—

(i)    no more than—

(A)   6 children, if the accommodation is provided as part of a program or service under the Youth Justice Act 1992; or
(B)   6 persons who require assistance or support with daily living needs; and

(ii)   no more than 1 support worker; and

(b)   includes a building or structure that is reasonably associated with the use in paragraph (a)."

Schedule 6 of the Regulation deals with development which a local categorising instrument is prohibited from stating is assessable development and relevantly provides the following definition for a material change of use for "community residence":

"6 Material change of use for community residence

(1)        A material change of use of premises for a community residence, if—

(a)        the premises are included in a prescribed zone under a local categorising instrument; and
(b)        no more than 7 support workers attend the residence in a 24-hour period; and
(c)        at least 2 car parks are provided on the premises for use by residents and visitors; and
(d)        at least 1 of the car parks stated in paragraph (c) is suitable for persons with disabilities; and
(e)        at least 1 car park is provided on the premises for use by support workers."

The Site is located in the Low Density Residential Zone under version 6.00/2022 of the Redland City Plan 2018, which was the planning scheme in effect when the decision notices were issued and that is a prescribed zone in accordance with the provision.

Therefore, if the proposed SDA Housing complies with the above provisions it is accepted development which does not require a development permit from the Council.

Court finds that the SDA Housing is a "community residence"

The SDA Housing was proposed to be a two-storey building. The ground floor would comprise of two two-bedroom units for NDIS participants (Residents), a garage, foyer, lift, two stairways, a therapy pool, and terrace, and the second floor would include a single-bedroom support-worker unit, two two-bedroom units for Residents, foyer, lift, two stairways, and a multi-purpose room for shared use. Each of the Residents' units contained an area labelled "bed 1" with an ensuite equipped with a hoist as well as an area labelled "guest" with a bathroom which is accessible from that room and the living area (at [10]). The SDA Housing would therefore be capable of accommodating up to eight Residents and two support workers.

Meaning of "community residence"

The Respondents submitted that the Court "…should not impute to the Queensland legislature ignorance of the NDIS under Federal legislation…" and that paragraph (b) of the definition should be read "…as an enlargement of the matters that fall within the scope of a Community residence" (at [19]) through the use of the word "includes".

The Council submitted that the use of the word "and" necessitated the requirements of both paragraphs (a) and (b) to be satisfied, and that they are distinct requirements. This was submitted to require firstly "…an assessment to determine the number and type of occupants of the Building…" and secondly "…consideration of the nature of the building or structure, and whether it is 'reasonably associated with' the use of the Site…" (at [20]).

The Court concluded that the definition of "community residence" permits only accommodation of no more than six residents and no more than one support worker. The definition therefore did not allow "…for residential accommodation of persons who are not support workers or Residents, such as family members…" (at [27]). The use of the SDA Housing for people other than those satisfying both criteria was said to not be "reasonably associated with" the use.

Meaning of "reasonably associated with"

The Respondents submitted that "reasonably associated with" should be construed as meaning "logically connected to the use" (at [28]).

The Court considered a number of authorities which state that the words should be given their ordinary meaning and concluded that the phrase "…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" (at [34]).

Proposed development

The Court heard evidence from various witnesses who attested to the design and layout of the proposed SDA Housing and how it would meet the needs of Residents.

The Respondents' evidence was that "…the size of the guest bedroom and bathroom provide maximum choice and flexibility for the user…" (at [35]) and that Residents may require a second bedroom to temporarily accommodate family and friends, to provide an at-home workspace, or to store various equipment and supplies which could be most conveniently stored in a spare room (at [41]).

The Respondents further submitted that despite the SDA Housing being capable of accommodating eight Residents, the Respondents "…do not propose to use the Building to provide residential accommodation for more than six Residents and a single support worker" (at [37]). It was accepted that use of the SDA Housing by more than six Residents would not comply with the definition of "community residence".

The Council's evidence was that a second bedroom and bathroom which both met the specialist disability accommodation (SDA) standard was not necessary in circumstances where the Residents' needs could be met by a smaller, accessible second bedroom and bathroom. It was also submitted by the Council that mobility and other equipment could be appropriately stored in the secure garage as shown on the relevant plans (at [45]).

The Council additionally submitted that the SDA Housing did not conform with the definition of "community residence" in the sense that it proposed "four self-contained apartments" as opposed to a "communal form of living in a single dwelling" (at [47]). The Court, however, was not persuaded by this argument and found that "…whilst there might be more than one dwelling in the Building, the use of the Building remains a single Community residence" (at [50]).

The Court accepted the evidence of the Respondents' experts, being that the inclusion of a second bedroom and bathroom which are compliant with the SDA standard was reasonable for housing of this kind in order to meet the needs of its Residents (at [53]) and had regard to the need for mobility and other equipment to be kept proximate to the Resident (at [54]). Further, the Court was satisfied that all areas within each unit ought to be accessible by the Resident, and that the evidence demonstrated such access was achievable for the SDA Housing (see [55] to [56]).

Conclusion

The Court was satisfied that the SDA Housing was capable of being used in a manner which is compliant with the definition of "community residence" and therefore lawful without the need for a development permit.
The Council's application was therefore dismissed.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2024.

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