Mackenzie v Warringah Council [2002] NSWLEC 246

Mackenzie v Warringah Council [2002] NSWLEC 246

The proposed boarding house did not constitute "housing" because the rooms were not capable of occupation as separate domiciles: the development lacked the permanence inherent in the concept of domicile, a minimum occupation of 42 days did not establish permanency, and the extensive supervisory control and rules imposed by the resident manager were consistent with a boarding house or hostel and with a business use involving provision of lodgings and services for reward. It was therefore not category 1 housing and was to be treated as category 3 business premises or short-term accommodation under the Dee Why North Locality Statement.

Jurisdiction
Australia
Judgment Date
05 February 2003
Procedural Posture
Development Application Proceedings Concerning Categorisation of Proposed Boarding House Use Under Warringah Local Environmental Plan 2000 / Determination of a Question of Law
Outcome
The question of law was answered by holding that the development application was not for "housing" and therefore was not category 1 development; it was category 3 "business premises" or "short-term accommodation".
Legal Topics
['development Application' 'land Use Categorisation' 'boarding House' 'housing' 'business Premises' 'short Term Accommodation' 'dwelling and Domicile']
['planning and Environment Law' 'local Government Law'] ['development Application' 'land Use Categorisation' 'boarding House' 'housing' 'business Premises' 'short Term Accommodation' 'dwelling and Domicile']

Case Brief

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Procedural Posture

Development Application Proceedings Concerning Categorisation of Proposed Boarding House Use Under Warringah Local Environmental Plan 2000 / Determination of a Question of Law

Legal Issues

  1. 1 ['Whether the development application for a new boarding house at 789 Pittwater Road, Dee Why should be assessed as a category 1 or category 3 application pursuant to the Dee Why North Locality Statement of the Warringah Local Environmental Plan 2000.' 'Whether the proposed development constituted "housing" because it involved one or more "dwellings" as defined in the Warringah Local Environmental Plan 2000.' 'Whether the proposed development was properly characterised as "business premises" or "short-term accommodation".']

Ratio Decidendi

The proposed boarding house did not constitute "housing" because the rooms were not capable of occupation as separate domiciles: the development lacked the permanence inherent in the concept of domicile, a minimum occupation of 42 days did not establish permanency, and the extensive supervisory control and rules imposed by the resident manager were consistent with a boarding house or hostel and with a business use involving provision of lodgings and services for reward. It was therefore not category 1 housing and was to be treated as category 3 business premises or short-term accommodation under the Dee Why North Locality Statement.

Court Disposition

The question of law was answered by holding that the development application was not for "housing" and therefore was not category 1 development; it was category 3 "business premises" or "short-term accommodation".

Orders

  • ['The exhibits be returned.']