Key takeaways
The Court of Appeal upheld the interpretation that a “community residence” includes both the residential accommodation itself and any building or structure reasonably associated with it.
The Court confirmed that a building's physical capacity (e.g., number of bedrooms or bathrooms) does not disqualify it from being a lawful “community residence,” as long as it is actually used for no more than six residents and one support worker.
The Court rejected the argument that each unit within a multi-unit building must be treated as a separate “community residence”.
The Court of Appeal has delivered its judgment in Redland City Council v Boutique Capital Pty Ltd, a matter concerning the operation of provisions of the Planning Act and Planning Regulation that make a material change of use for “community residence” development that cannot be made assessable by a local planning instrument. Our summary of the early decision of the P&E Court can be found here. The Court of Appeal upheld the P&E Court’s decision and dismissed each of Redland City Council’s three grounds of appeal.
Each ground alleged that the primary judge made an error of law in interpreting the definition of “community residence” in schedule 24 of the Planning Regulation 2017. All of the grounds related back to the scale of the building.
The definition of “community residence” is:
“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).”
Council’s first ground concerned the relationship between sub paragraphs (a) and (b) of the definition. The P&E Court had held that:
‘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’.
Council submitted that the proper construction of the definition was one in which the use of premises must satisfy both subparagraphs (a) and (b) of the definition. The argument centred on the use of the terms “means” and “includes”. The use of the word “includes” or “including” without “means” generally indicates the provision is expansive of what would otherwise be included in a definition. Council contended that the word “includes” in paragraph (b) should be construed as “means and includes” such that it was an exhaustive definition. The Court of Appeal rejected that argument and found that the definition here was not of that nature. It determined that a building or structure “reasonably associated” with the use in paragraph (a) was not something ordinarily with the scope of paragraph (a). That is, the inclusion of subparagraph (b) expressed the legislative intention to include a reasonably associated building or structure within the scope of a “community residence”, not an intention to limit the use by adding another necessary condition. It also served to remove any doubt about structures like a garage or shared foyer being within the residential accommodation use. The Court of Appeal concluded that the primary judge was not in error in construing the definition in accordance with its ordinary meaning.
Council’s second ground was related to its first. It illustrates how Council would have applied the “community residence” definition if its proposed construction of the defined use term was accepted. Essentially, Council’s position was that a building with eight bedrooms across four units, two bathrooms per unit, and a separate support worker unit, could not be a building “reasonably associated” with the use of the premises for no more than six persons requiring assistance.
Again, the Court of Appeal affirmed the primary judge’s finding that although the building could physically accommodate eight residents, it did not follow that it could not lawfully be used by no more than six residents consistent with the “community residence” definition. The Court of Appeal noted that Council’s interpretation might have the result that persons with relevant needs would not be permitted to have a second bathroom for a visitor to use, or a second bedroom for a visitor to rest during the day or for overnight stays. The Court rejected a restrictive view of the abilities or rights of people with disabilities. The Court of Appeal concluded that speculation about the possible use of the premises outside or contrary to the definition did not render the intended use unlawful, and that the primary judge had not erred in applying the relevant statutory provisions.
Council’s third ground was that each unit in the building was a separate “premises” and that the use therefore comprised four separate “community residences”. The Court of Appeal held that the current definition of “community residence” (unlike previous definitions) does not limit the use to a single dwelling, or require shared communal spaces. That was consistent with the primary judge’s finding that “whilst there may be more than one dwelling in the building, the use of the building remains a single community residence”.
The appeal was dismissed, and the decision to dismiss Council’s application was upheld.