Abdo v Fairfield City Council; Tony & Janet Partners Pty Ltd v Fairfield City Council; Abdo v Fairfield City Council (No 2) [2012] NSWLEC 247

Land and Environment Court New South Wales

Medium Neutral Citation: Abdo v Fairfield City Council; Tony & Janet Partners Pty Ltd v Fairfield City Council; Abdo v Fairfield City Council (No 2) [2012] NSWLEC 247 Hearing dates: 24 October 2012 Decision date: 05 November 2012 Jurisdiction: Class 1 Before: Lloyd AJ Decision: Contention 1 of Council's Statement of Facts and Contentions answered as set out at [40] - [42] of the judgment. Catchwords: DEVELOPMENT APPLICATION - characterisation of use - boarding houses - properly characterised as "multi-unit housing" or "residential flat building" - whether Part 2 Division 3 of State Environmental Planning Policy (Affordable Rental Housing) 2009 applies. Legislation Cited: Uniform Civil Procedure Rules 2005 r 28.2 Fairfield Local Environmental Plan 1994 cll 4, 5, 8 State Environmental Planning Policy (Affordable Rental Housing) 2009 cll 8, 26, 27, 28, Pt 2 Div 3 Cases Cited: Abdo v Fairfield City Council; Tony & Janet Partners Pty Ltd v Fairfield City Council; Abdo v Fairfield City Council [2012] NSWLEC 233 Abret Pty Ltd v Wingecarribee Shire Council [2011] NSWCA 107, 180 LGERA 343 Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114, 151 LGERA 400 Chehade v Bankstown City Council [2012] NSWLEC 1122 Chehade v Bankstown City Council [2012] NSWLEC 221 Egan v Hawkesbury City Council (1993) 79 LGERA 321 Hawkesbury City Council v Sammut [2002] NSWCA 18, 119 LGERA 171 Category: Separate question Parties: 10877 of 2012 and 10879 of 2012 Fouad Abdo (Applicant) Fairfield City Council (Respondent)

10878 of 2012 Tony & Janet Partners Pty Ltd (Applicant) Fairfield City Council (Respondent) Representation: COUNSEL: Mr C R Ireland (Applicants) Mr A J Seton, solicitor (Respondent) SOLICITORS: Maddocks Lawyers (Applicants) Marsdens Law Group (Respondent) File Number(s): 10877 of 2012, 10878 of 2012 and 10878 of 2012

Judgment 1The applicants in these three matters have submitted development applications to Fairfield City Council for the erection of boarding houses. The Council refused to grant consent in each case and the applicants have appealed to the Court. The Council relies upon several grounds of refusal, including that the development is prohibited in the relevant zones. The Council's contention 1 in the Statement of Facts and Contentions in each case is now the subject of separate determination as a preliminary question (as permitted by r 28.2 of the Uniform Civil Procedure Rules 2005): Abdo v Fairfield City Council; Tony & Janet Partners Pty Ltd v Fairfield City Council; Abdo v Fairfield City Council [2012] NSWLEC 233. 2Contention 1 in each matter is that the development applications must be refused because the proposed developments are prohibited on lands within Zone 2(a) Residential A, in the case of 10877 and 10878 of 2012, and Zone 2(a1) Residential A1 in the case of 10879 of 2012 under the provisions of the Fairfield Local Environmental Plan 1994 ("the LEP"), and Division 3 of Part 2 of State Environmental Planning Policy (Affordable Rental Housing) 2009 ("the State Policy") does not apply to the developments. 3The answer to the question requires consideration of the relevant development controls in each case which apply to the particular development application. That is, it is necessary to consider each application separately.

Proceedings No 10877 of 2012 4This is an application for a boarding house development at 83A Camden Street, Fairfield Heights by converting an existing two-storey dwelling into three boarding rooms with associated share facilities and the erection of five self-contained ground level units, each with a kitchen, bathroom/laundry and each having private access at ground level. One of the ground level units has a room attached with separate ground floor access which is designated as "common area". 5This property is within Zone No 2(a) Residential A under the LEP. 6The table to cl 8 of the LEP specifies the purposes for which development may be carried out without development consent, the purposes for which development may be carried out only with development consent, and the purposes for which development is prohibited. In Zone No 2(a) no development is permitted without consent. Development which is permitted only with development consent is any purpose other than a purpose which is prohibited. The extensive list of prohibited development includes "multi-unit housing" and "residential flat buildings". The Council submits that this development is properly characterised as "multi-unit housing" and is thus prohibited. The applicant contends, however, that the development is a boarding house as stated in the development application, which as an innominate use is not prohibited. The applicant alternatively submits that the development is permissible under the State Policy, which prevails over any other environmental planning instrument to the extent of any inconsistency: cl 8 State Policy. 7"Multi-unit housing" is defined in the LEP as meaning "2 or more dwellings (whether or not attached) on one allotment of land, each with private access to ground level open space". 8A "dwelling" is defined as "a room or number of rooms occupied or used, or so constructed or adapted as to be capable of being occupied or used, as a separate domicile". 9The definition of "multi-unit housing" means that the proposed five self-contained ground level units fall within that definition. Each unit is constructed so as to be capable of being used as a separate domicile, having all the facilities that one finds in a dwelling, including a bathroom/laundry and a kitchen; and each unit has private access to ground level open space. The fact that the plans show a room described as "common area" (which is separately accessed from ground level) does not disqualify these units from coming within the definition of "multi-unit housing". 10The ground floor of the two-storey building contains a single unit, together with a bathroom, a living area/kitchen, a garage, a storeroom, and a common laundry. The ground floor is thus also within the definition of a "dwelling" and since it has private access to ground level open space it, too, is within the definition of "multi-unit housing". The upper floor of the two-storey building has two units, with a shared bathroom, a shared living/dining/kitchen area and shared storeroom. This floor is accessed by external stairs, also shared, and so does not come within the definition of "multi-unit housing". That is, the upper floor of the two-storey building is a boarding house, being an innominate use not listed as prohibited development and would thus be permissible with development consent. 11The Council submits, however, that the fact that individual rooms within the two-storey building may be individually let to lodgers does not take away from the fact that the rooms and facilities provided within the building may be capable of being occupied or used as a separate domicile. I accept this submission as self-evident, but the fact that it does not have private access to ground level open space excludes the upper floor from the definition of "multi-unit housing". 12In the applicant's submission, notwithstanding the fact that (apart from the upper floor of the two-storey building) the development may come within the definition of "multi-unit housing", the stated purpose of the development is a boarding house; in this respect, cl 8 of the LEP and the zoning table governs "the purposes for which development may be carried out", and "the purposes for which development is prohibited"; that is, in planning law, use would be for a purpose and "purpose" is not concerned with the nature of the buildings that will be used to serve the purpose (citing Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114, 151 LGERA 400 at [34]). 13A similar submission was rejected, however, by the Court of Appeal in Abret Pty Ltd v Wingecarribee Shire Council [2011] NSWCA 107, 180 LGERA 343. In that case the Court, applying settled authority (Egan v Hawkesbury City Council (1993) 79 LGERA 321 and Hawkesbury City Council v Sammut [2002] NSWCA 18, 119 LGERA 171), held, at [67] - [68] that if there are overlapping purposes where one use is an innominate use and another is a nominate use, then each is independently controlled by the local environmental plan and if one purpose is prohibited then the plan is disobeyed if the development proceeds on the basis of the other permitted purpose. The applicant's submission that there is one stated purpose, being a boarding house development - being the sole purpose - must thus be rejected. 14The applicant next relies upon the State Policy, which prevails over any other inconsistent environmental planning instrument, and submits that the proposed development is permissible under that Policy. Division 3 of Part 2 of the Policy is headed "Boarding houses". Clause 26 in Division 3 relevantly states: 26 Land to which Division applies This Division applies to land within any of the following land use zones or within a land use zone that is equivalent to any of those zones: (a) Zone R1 General Residential, (b) Zone R2 Low Density Residential, (c) Zone R3 Medium Density Residential, (d) Zone R4 High Density Residential, (e) Zone B1 Neighbourhood Centre, (f) Zone B2 Local Centre, (g) Zone B4 Mixed Use. 15Clause 27 relevantly states: 27 Development to which Division applies (1) This Division applies to development, on land to which this Division applies, for the purposes of boarding houses. (2) Despite subclause (1), this Division does not apply to development on land within Zone R2 Low Density Residential or within a land use zone that is equivalent to that zone in the Sydney region unless the land is within an accessible area. (3) Despite subclause (1), this Division does not apply to development on land within Zone R2 Low Density Residential or within a land use zone that is equivalent to that zone that is not in the Sydney region unless all or part of the development is within 400 metres walking distance of land within Zone B2 Local Centre or Zone B4 Mixed Use or within a land use zone that is equivalent to any of those zones. 16Clause 28 relevantly states: 28 Development may be carried out with consent Development to which this Division applies may be carried out with consent. 17There is no zone in the LEP which is designated R1 General Residential. The applicant submits, however, that Zone No 2(a) in the LEP is "a land use zone that is equivalent to" Zone R1 General Residential in the State Policy. The reference to "a land use zone that is equivalent to" Zone R1 General Residential is a reference to that zone in the standard instrument: cl 4(2). Where the standard instrument has not been adopted, then the zone is "a land use zone in which (in the opinion of the relevant authority) equivalent land uses are permitted to those permitted in that named land use zone": cl 5(1)(b). An assessment made by a relevant authority applies only in respect of the particular development that is proposed to be carried out: cl 5(2). It is necessary, therefore, to determine whether equivalent uses are permitted in the R1 zone in the standard instrument and in the 2(a) zone in the LEP: Chehade v Bankstown City Council [2012] NSWLEC 221 (Sheahan J), affirming the approach adopted by Commissioner Morris in Chehade v Bankstown City Council [2012] NSWLEC 1122 at [30]. This approach involves comparing the set of uses rather than a direct comparison with individual uses. 18The parties accept that the comparison to be made is between the permissible uses in the 2(a) zone and in the R1 zone respectively. That is, they accept that the permissible uses in the other zones in the standard instrument bear little comparison with the 2(a) zone. 19The analysis thus undertaken shows that there are 18 innominate permitted uses defined in the LEP in the 2(a) zone and 16 permitted uses in the R1 zone. Only 11 of the permissible uses are common to both zones. In another way, 11 of the 18 permitted uses in the 2(a) zone are also permitted in the R1 zone, and 11 of the 16 permitted uses in the R1 zone are also permitted in the 2(a) zone. That is, 61 per cent of the 2(a) uses are common and 69 per cent of the R1 uses are common. 20In addition to the numerical comparison, it is also appropriate to compare the two sets of uses in a qualitative sense. In the R1 zone the form of permissible residential development is of a relatively dense kind, such as attached dwellings, multi-unit housing, residential flat buildings and shop-top housing, none of which are permissible in the 2(a) zone. Shops are not permissible in the 2(a) zone, but neighbourhood shops are permissible in the R1 zone. A range of other uses are permitted in the 2(a) zone which are not permissible in the R1 zone such as clubs, education establishments, family day cares, hospitals, health consulting rooms, places of public entertainment, telecommunications facilities and utility installations. There are significant differences both in number and nature between the two sets of permissible uses. Whilst reasonable minds may differ, I am inclined to the view that in this case the two sets of land uses are not equivalent. 21Accordingly, Division 3 of Part 2 of the State Policy does not apply to the proposed boarding house development in the 2(a) zone under the LEP. I consider, therefore, that only the upper level of the two-storey building is permissible with consent as falling within the innominate use of a boarding house. The balance of the proposed development is properly characterised as multi-unit housing and is prohibited development.

Proceedings No 10878 of 2012 22This is an application for a boarding house development at 250 Ware Street, Fairfield Heights. The development comprises a partly two-storey and partly single-storey building containing ten self-contained units, each having a kitchen and a bathroom/laundry, and a separate detached building described as a "common area". The six ground floor units have direct ground level access. The four upper floor units share a common stairwell. This property is also within Zone No 2(a) Residential A under the LEP. 23The development application describes the purpose of the proposed development as a boarding house development. The Council, however, contends that the development comes within the definition of "residential flat building", which is prohibited within the 2(a) zone. The Council does not contend that this development is within the definition of "multi-unit housing" since four of the ten units do not have private access to ground level open space. If the remaining six units were classified as "multi-unit housing" then that, too, is prohibited development. 24A "residential flat building" is defined in the LEP as meaning "a building containing 3 or more dwellings, but does not include multi-unit housing". A "dwelling" is defined as meaning "a room or number of rooms occupied or used, or so constructed or adapted as to be capable of being occupied or used, as a separate domicile". 25The applicant again relies upon the submission that the purpose of the land use in planning law is not concerned with the nature of the buildings that will be used to secure that purpose: Chamwell at [34]; that in the present case the stated purpose is a boarding house; and there are not two independent uses as was the case in Abret. 26The difficulty with the submission is that the definition of "dwelling" includes a room or number of rooms "capable of being occupied or used as a separate domicile". That is, notwithstanding the stated purpose of boarding house use, the proposed development also falls fairly and squarely within the definition of "dwelling" and thus "residential flat building". The fact that there is a separate single-storey building containing a room described as "common area" does not disqualify the development from being characterised as a "residential flat building". In this circumstance I am bound by the decision of the Court of Appeal in Abret, which is relevantly indistinguishable. In that case, although the purpose of the development was described in the development application as "a Seniors Housing Development", it also came within the definition of a "residential flat building". It was held that each use was independently controlled by the local environmental plan; it was not necessary to find a predominant use; and residential flat buildings were prohibited. So, too, in the present case, both boarding houses and residential flat buildings are each independently controlled by the LEP and since residential flat buildings are prohibited then the development is prohibited. 27As with proceedings No 10877 of 2012 (the proposed development at 83A Camden Street, Fairfield Heights), the applicant also relies upon the State Policy to say that the development is permissible with consent. However, for the reasons discussed at [14] - [20] above, the relevant provisions of that Policy do not apply to the 2(a) Residential A zone in the LEP. 28It follows that this proposed development is prohibited within the 2(a) Residential A zone in the LEP.

Proceedings No 10879 of 2012 29This is an application for development described as a boarding house development at 6 Wray Street, Fairfield Heights. The development comprises 12 self-contained units, each having its own kitchen and bathroom/laundry. The units are contained in two buildings. A single-storey building towards the rear of the land is shown as having four units, with each having private access to ground level open space. The remaining eight units are in a two-storey building towards the front of the land, four on the ground floor and four on the upper floor. Each of the ground floor units has private access to a common access pathway at ground level. The four upper units are accessed by a common stairway. A single room described as "common area" is attached to the end of the single-storey building. 30This land is within Zone No 2(a1) Residential A1 under the LEP. In this zone, multi-unit housing is not prohibited and is thus permissible with consent. Residential flat buildings, however, are prohibited. 31The applicant contends that the proposed development is for the stated purpose of boarding house development, which is not listed as being prohibited and is thus an innominate permissible development. Alternatively, the applicant submits that if the proposed development is otherwise prohibited by the LEP, then it is permissible under the State Policy - which, of course, prevails over the LEP to the extent of any inconsistency. 32The Council contends that (a) the development is properly characterised as being development for the purpose of a "residential flat building" and (b) the State Policy does not apply to the 2(a1) zone. 33I am unable to fully accept the Council's submission at [32(a)] above in view of the definition of "residential flat building" in the LEP. The definition of "residential flat building", is "a building containing 3 or more dwellings, but does not include "multi-unit housing". The four units in the single-storey building and the ground floor units in the two-storey building all fall within the definition of multi-unit housing and are thus permissible with consent. The four upper level units in the two-storey building do not fall within the definition of "multi-unit housing" since they each do not have private access to ground level open space. Since they are otherwise fully self-contained they come within the definition of a "residential flat building". 34The Council submits that the presence of four residential flats in the two-storey building gives their character to the whole development. I am unable to agree. The dominant use is multi-unit housing, not the other way around. 35The question which remains is whether the State Policy applies to the 2(a1) zone so as to prevail over the LEP's prohibition against development of residential flat buildings. This again involves an exercise of comparison between the permissible uses in the R1 General Residential zone under the standard instrument and the permissible uses in the 2(a1) zone under the LEP to see whether the 2(a1) zone is equivalent to the R1 zone. 36A comparison of the permissible uses in the two zones shows that there are 19 innominate permissible uses in the 2(a1) zone and, as previously noted, 16 permissible uses in the R1 zone. Thirteen of the permissible uses are common. That is, 68 per cent of the uses in the 2(a1) zone are common and 81 per cent of the uses in the R1 zone are common. Again, the comparison is not to find just a numerical equivalence but also a qualitative equivalence. This shows that a more dense form of residential development is permissible in the R1 zone but not permissible in the 2(a1) zone, namely, residential flat buildings and shop-top housing. Neighbourhood shops are permissible in the R1 zone but not in the 2(a1) zone. A range of other uses are permissible in the 2(a1) zone but not in the R1 zone, being clubs, education establishments, family day cares, health consulting rooms, hospitals, places of public entertainment, telecommunications facilities and utility installations. 37Again, although reasonable minds may differ, I am inclined to the view that there are sufficient differences, both in number and nature between the two sets of permissible uses to find that they are not equivalent zones. It follows that Division 3 of Part 2 of the State Policy does not apply in this case. 38I consider, therefore, that the ground level units are classified as multi-unit housing within the meaning of the LEP and are thus permissible with consent. The four upper level units in the two-storey building are prohibited since they come within the definition of a residential flat building. In so concluding, I adopt the reasoning set out in [26] above.

Conclusion 39I answer contention 1 of the Council's Statement of Facts and Contentions in each case as follows:

Proceedings No 10877 of 2012 40The proposed use of the upper level of the proposed two-storey building for the purpose of a boarding house is an innominate permissible use with consent under the Fairfield Local Environmental Plan 1994. The balance of the development is properly characterised as multi-unit housing which is prohibited. The provisions of Division 3 of Part 2 of State Environmental Planning Policy (Affordable Rental Housing) 2009 do not apply.

Proceedings No 10878 of 2012 41In addition to the stated purpose of a boarding house, the proposed development is within the definition of the prohibited purpose of "residential flat building" and is thus prohibited under the Fairfield Local Environmental Plan 1994. The provisions of Division 3 of Part 2 of State Environmental Planning Policy (Affordable Rental Housing) 2009 do not apply.

Proceedings No 10879 of 2012 42The ground level units are properly characterised as multi-unit housing within the meaning of the Fairfield Local Environmental Plan 1994 and are permissible with development consent. Although the four upper level units in the two-storey building are for the stated purpose of a boarding house, they are prohibited since they come within the definition of the prohibited purpose of a "residential flat building". The provisions of Division 3 of Part 2 of State Environmental Planning Policy (Affordable Rental Housing) 2009 do not apply. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 November 2012