Australia: Student Accommodation: 21/12 AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44
Planning and Environment case updates - March 2012 cases

Court of Appeal - Chesterman JA, Margaret Wilson AJA, Philippides J

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Environment and Planning – Development control – application for material change of use to "residence not complying with the house code" – appeal to the Building and Development dispute Resolution Committee – application not properly made – whether student accommodation falls within the definition of house or multi-unit development under the Brisbane City Plan 2000 (as amended) – s. 498 of the Sustainable Planning Act 2009

Facts: This was an application by AAD Design Pty Ltd for leave to appeal to the Court of Appeal. The applicant applied to the respondent for three development permits in respect of separate parcels of land at Annerley, Greenslopes and Woolloongabba, for a material change of use of the land for a "residence not complying with house code". The structures on each parcel would have multiple bedrooms namely 9, 10 and 11 bedrooms, which the applicant intended to rent out as student accommodation.

The respondent would not proceed with the applications advising that they were not a 'properly made application' as, according to the respondent, the proposal applied for was defined as a Multi-unit Dwelling (Boarding House – 10 Units) consistent with the definition of a Multi-unit Dwelling (Boarding House) in Chapter 3 of the Brisbane City Plan 2000 (Plan) and the level of assessment would be impact assessment.

The applicant appealed to the Building and Development Dispute Resolution Committee. On 24 August 2010 the Committee concluded that the proposal should be defined as a 'multi-unit dwelling', not a house, and dismissed the appeal.

The applicant appealed to the Planning and Environment Court against the Committee's decision. The appeal was dismissed on 6 April 2011.

The Applicant sought leave to appeal to the Court of Appeal pursuant to section 498 of the Sustainable Planning Act 2009 pursuant to which an appeal may only be brought with the leave of the Court of Appeal and then on a point of law only.

The question before the Court of Appeal was whether the proposed uses fell within the definitions of "House" or "Multi-unit Dwelling" in section 10.2 of the Plan.

"House" is defined as:

A "Multi-unit Dwelling is defined as:

In the P & E Court the respondent argued that the proposed development fell under both the definition of "House" and "Multi-unit Dwelling" and where two or more definitions cover the proposal the 'best fit' approach must be adopted. The respondent argued that the best fit for the proposed use, would be the definition for 'Multi-unit dwelling'.

The P & E Court in dismissing the appeal to it relied on the statement of Rackemann DCJ in Yu [and] Leung v Brisbane City Council & Anor, that:

The applicant submitted that the decision of the P&E Court was wrong in two respects:-

1. in failing to give the words of the last sentence of the definition of "multi-unit dwelling" contained in s 10.2 of the Plan their ordinary meaning;
2. in applying the so called "best fit" test to determine that the relevant use of the premises met that definition.

The applicant did not dispute that the proposals were for multi-unit dwellings however it relied on the final sentence of the definition "The term multi-unit dwelling does not include a house... defined elsewhere".

The applicant submitted that:-

1. The effect of the final sentence is that where a development satisfies both definitions then by operation of the definition itself the development is a house and not a multi-unit dwelling. Primacy is given to the definition of "House".
2. The "best fit" test is appropriate where there are two or more defined uses, each of which is apt to cover the proposal, however this is not such a case as only one definition was satisfied.
3. The proposal could not be a multi-unit dwelling because it was also a house.

The respondent argued that:-

1. When properly understood the development did not satisfy the definition of "House".
2. The Court should approach the task of construction as described by Thomas J in Z W Pty Ltd v Peter R Hughes and Partners Pty Ltd [1992] 1 Qd R 352: "... courts endeavour ... to adopt a commonsense approach, or the approach which seems to make the most sense out of the provisions which may be contradictory as well as obscure..."
3. The "best fit" test did not apply because the application is not for a "House" but for a "Multi-unit Dwelling".
4. There are three differences between a house and a multi-unit dwelling:-
5. 1. The description of the use – "principally for residential occupation" (house) and "as the principal place of longer term residence" (multi-unit dwelling);
   2. The description of the user – "a domestic group or individual/s" (house) and "several discrete households, domestic groups or individuals (multi-unit dwelling); and
   3. The extent of the premises in which the relevant user or users carries on the relevant use.

The third distinction was based on the premise that the development permit for making a material change of use was sought for the whole of the premises. Each bedroom in that dwelling would be a separate tenancy. The essential difference is said to be that the use of a house involves occupation of the whole of the premises, while the occupation of a multi-unit dwelling may be a part of the premises.

Decision: Philippides J and Margaret Wilson AJA held, in dismissing the appeal, that:

1. There was sufficient substance in the grounds advanced to grant leave to appeal.
2. The validity of the "best fit" test as a canon of construction was in doubt.
3. The established principles and canons of statutory construction should be applied. Their Honours relied upon the approach enunciated by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [70]: "Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve a result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions."
4. In considering the respondents three distinctions between house and multi-unit dwelling it was held that:
5. 1. the term "Residence" or "longer term residence" is identical to residential occupation.
   2. there is nothing in the express words of the definition of "house" that requires that each individual residing at the premises occupy the whole of the premises.
   3. the words "several discrete" qualify the words "households, domestic groups or individuals"; they inform the meaning to be given to the word "individuals" in that definition. The critical distinction that arises between the definitions is whether the individuals can be characterised as being several "discrete" individuals in respect of their residential occupation.

5. The term "house" is not intended to encompass several individuals residing "discretely" in the same dwelling.
6. Whether the extent and nature of the sharing of accommodation renders the use within that of "house" or "multi-unit dwelling" may be a matter of degree.
7. The proposed use involves individuals under separate tenancy agreements renting a particular room (albeit with some common areas). In those circumstances, they must be characterised as several "discrete" individuals and not as "individuals" meeting the house description.

Chesterman JA in dissent held that:

1. There is no real distinction between "individuals" and "several discrete individuals".
2. The use of premises for a house includes the use of part of a building for that purpose.
3. The respondent's reasons for contending that the proposed use will not constitute a house should not be accepted.

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