In March 2017, the Victorian Civil and Administrative Tribunal (Tribunal), constituted by H. McM. Wright QC, directed a council to issue a certificate stating that the use and development of land (as described and identified in the case) for shared accommodation does not require a permit for use or development.^[1]

The key issue concerned whether the proposed building is:

• a ‘residential building’ for which a development permit is required in the General Residential Zone, or
• a ‘dwelling’ and, as such, does not attract the need for a permit.

The plans included a proposed two-storey building, which would contain:

• four bedrooms on the ground floor each with built-in robes and bathrooms
• five bedrooms on the first floor each with built-in robes and bathrooms
• a common kitchen on the ground floor
• a common laundry on the ground floor
• five off-street car parking spaces within the ground setback, including one disabled car parking space.

Each room was to have its own entrance.

Whether a permit was required for its construction depended upon whether the building was:

• a ‘residential building’ for which a permit was required, or
• a ‘dwelling’ for which no permit was required.

This issue ultimately focused on the meaning to be given to the term ‘residence’ in the context of the definition of ‘dwelling’ in clause 74 of the planning scheme.

The Tribunal ruled that because the residents of the building would live on the premises permanently or for a considerable time (thereby making it their home), this would suffice to qualify the building as a ‘dwelling’.

It followed, according to the Tribunal, that as the building is a ‘dwelling’, it cannot be a ‘residential building’ (as defined). Moreover, as the proposal was for one dwelling on a lot in a General Residential Zone, no permit for its construction was required.

The council had submitted (supported by Armato v Hepburn Shire Council^[2]) that the building is a ‘residential building’ and required a permit because it would provide accommodation for multiple people on an individual basis in multiple units of accommodation, as distinct from a ‘dwelling’ where accommodation is provided for people as a group.

In addition, the council relied upon the notes that were added to clause 52.23 by Amendment VC127^[3], which read:

This provision does not exempt the development of land, including the construction of a building or the construction or carrying out of works and demolition.

Check whether an overlay also applies to the land.

Other requirements may also apply. These can be found at Particular Provisions.

The Tribunal did not, at least in specific terms, deal with these submissions. It was content to treat the notes as forming part of the planning scheme on the basis that 'the notes simply confirm the view … that clause 52.23 does not exempt the proposal from a requirement for a development permit'. But, said the Tribunal, 'nor does it impose that requirement. The requirement, if it exists, must be found elsewhere in the planning scheme.'

In the absence of any later clarifying decision or scheme amendment, the decision diminishes planning controls in the case of future proposals to construct or extend a building for shared housing?

Though each case must be considered on its own facts, the probable loss of planning control for proposals of this kind appears significant.

This is particularly so when one considers the Tribunal’s observation that:

Looking at the matter from a different perspective, the Tribunal accepts that many passers-by may not describe the proposal, when built, as a dwelling. In common parlance, it is more likely to be described as a boarding house.

It seems to us that the decision runs counter to the apparent intent of Amendment VC127, where the notes to clause 52.23 pointed out the exemption from a use permit does not exempt a proposal from the need for a development permit.

The present position is therefore unsatisfactory or at least potentially so. Some remedy in terms of a clarifying decision or a scheme amendment would appear to be appropriate.

[1] Modo Project Builders Pty Ltd v Frankston CC [2017] VCAT 390

[2] [2007] VCAT 603

[3] Gazetted 4 February 2016