In the case of McAuley v Northern Region Joint Regional Planning Panel [2013] NSWLEC 125 (Craig J) the L&E Court found that characterisation of a development as a “transitional group home” as defined in the Coffs Harbour City Local Environmental Plan 2000 (“the LEP”) was correct.
Facts
Ms McAuley sought a declaration that a development consent for a “transitional group home” (a drug and alcohol rehabilitation centre where residents would stay for 3-6 months) granted by the Northern Region Joint Regional Planning Panel (“the JRPP”) was invalid, and an order restraining the landowner and developer from carrying out development pursuant to the development consent.
The terms ‘transitional group home’ and ‘dwelling’ are defined in the LEP as follows:
Transitional group home means a dwelling which is used to provide temporary accommodation for certain purposes and which is occupied as a single household.
Dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile’.
Findings
However the Court found that a “common sense” approach to the word “dwelling” in the definition of “transitional group home”, required its defined meaning be modified to operate harmoniously with the defined expression of which “dwelling” was but an element. The purpose of the development was not a dwelling considered in isolation, but rather a “dwelling” constrained by and having the characteristics of the elements which the definition of a “transitional group home” required.
The Court also found that the development was properly characterised as a “transitional group home” because a group of people would live together as a unit with sufficient commonality or community of purpose to satisfy the unifying element of a “single household”. The bedroom pavilion contained bedrooms with ensuite facilities, shared laundry facilities, a single kitchen, dining area and lounge areas accommodate all those who would reside in the group home precinct. These were facilities necessary and appropriate to enable the clients, as a group, to enjoy self-contained living at the facility. There was community of interest or cohesion in the residents in their common addiction and rehabilitation, and the undertaking of “domestic” chores associated with the “dwelling”.
The fact that the group home precinct was divided among three buildings did not disengage the proposed development from the definition of “transitional group home”. The manner of the occupation of the buildings and the purpose of its use, were for “temporary accommodation… for drug or rehabilitation purposes”. While undertaking that rehabilitation program, the clients must reside at the facility. That would be the client’s place of abode for three to six months… a period of residence which was consistent with “temporary accommodation”.
The Court also found that the two dwellings intended to be occupied by employees supervising residents of the “transitional group home” were ancillary to the group home purpose of use.
Note: This information is not to be relied upon as legal advice.