Everything but the Kitchen Sink – When is a ‘Dwelling’ not a Dwelling?
By Ms. Blaise Alexander, Solicitor, Property, Construction and Planning Law, Lovegrove Smith & Cotton
Many Councils take a staunch approach and are loathe to approve applications for additional dwellings on the same land, concerned that this would set a precedent leading to the ultimate demise of the nature of the area and objectives of the relevant Planning Scheme.
Council Planning Schemes define a dwelling as a building used as a self-contained residence which must include:
a) a kitchen sink;
b) food preparation facilities;
c) a bath or shower; and
d) a closet pan and wash basin.
The definition contains two limbs to be considered; firstly the inclusion of all of the four types of facilities above; and secondly the ‘use of the building as a self-contained residence’.
The Macquarie Dictionary defines the term ‘dwelling’ as a place of continual or habitual residence, where residence has the element of residing permanently, or for a considerable time. ‘Self-contained’ residence means having a kitchen, bedroom and toilet.
In order to comply with Council Regulations and Guidelines it is necessary not only to have regard to the definitions of a ‘dwelling’ for the purposes of the planning scheme, but also to consider how the Council will perceive the building is being used. Where it is clear for all intents and purposes that a building is being used as a self-contained residence, it may be considered a breach of Council planning regulations limiting the permitted number of dwellings on a property.
The definition of ‘use’ will include an investigation of both the proposed use and the actual use of the building. The Building Regulations 2006 (Vic) states that “any reference to the purpose for which a building is used includes the purpose for which it is intended to be used”.
The proposed use may be evident from facilities such as those in the definition of a dwelling above, but also by other facilities, including lounge and bedroom furniture. Facilities for sleeping in the building could indicate that the building is capable of being used as a self-contained residence.
The capacity of a building to be used for the purpose of a self-contained dwelling is alone not sufficient for finding that the building breaches Council regulations. There must also be an intention to use the building in the prescribed manner.
In Casey City Council v Gerard  VCAT 1838 the Tribunal stated that “whilst the building must contain certain facilities, such as a kitchen sink, etc, these facilities do not of themselves determine whether a building is a dwelling. A building may contain all of these facilities and still not be used as a self-contained residence”.
The case of Cotsonis v Darebin CC  VCAT 232 concerned a neighbour’s application for an enforcement order under the Planning and Environment Act 1987 alleging that a structure being built was a self-contained dwelling. The structure was a two storey weatherboard studio, comprised of a sitting room, bathroom and darkroom downstairs and bedroom upstairs. The darkroom contained cupboards, shelves and a laboratory type sink.
The Tribunal considered the manner in which the development was intended to be used within the context of the planning scheme definition of a “self-contained residence”, where “self-contained” was determined by virtue of the presence of the four key amenities listed in the planning scheme definition of a dwelling.
The complainants had claimed that the darkroom was a kitchen, however, the Tribunal found that although it contained a sink, there were no food preparation facilities, such as a microwave, hot plate or oven. Furthermore, the Tribunal noted that even if there were limited cooking facilities in the darkroom, they did not consider that this would necessarily mean the studio was being used as a dwelling. The Tribunal concluded that they did not find an intention for the property to be used as a self-contained residence, and the fact that it was possible to do so by altering the darkroom was irrelevant.
The Banyule CC v Girbau  VCAT 2251 shows that in deciding whether a building is a dwelling, the Tribunal will have regard to the intention of the owner to use the building as a dwelling, not just the capability of the building to be used as a dwelling. In that case the building possessed all four of the requisite facilities for definition as a dwelling under the planning scheme. However, the Council could not prove that it was the intention of the owner to use the building as self-contained accommodation.
It should be noted that in their reasons, the Tribunal Member stated “I believe the responsible authority has every right to be suspicious of whether the use in question complies with its planning scheme.”
In this case the Council contended that suspicion was created by apparatus (such as portable cooking appliances) present in the building which could easily be removed to give a different impression on inspection of the building. The inference was made that the occupiers were concealing the actual use of the building.
The Tribunal Member in Banyule CC v Girbau stated that “the absence of an oven, microwave oven or other cooking appliances could therefore lead me to a view that the studio/bungalow is not self-contained”.
The Tribunal noted that as the Council had brought the proceedings in VCAT seeking an enforcement order, they bore the onus of proof, and a higher standard of proof than an ordinary application for review. The Tribunal highlighted the lack of formal evidence, such as affidavits or witness evidence that confirmed the actual use of all the four components of the facilities necessary to establish use as a dwelling, not just the capacity to be used as such.
The Tribunal also notes that “there are some features of the use in the present proceeding which raise alarm bells, including separate vehicle access, a separate entrance, and a separate street number and separate letterbox”.
There is considerable subjectivity in the definition of a ‘dwelling’ and ‘self-contained residence’, so identifying conduct that amounts to a clear breach of regulations is difficult. Several factors may be taken into account which, in combination and cumulatively, could indicate that a building has the physical characteristics of and/or is being used as a dwelling.
It seems evident from the case law that if the building clearly does not possess all four of the critical amenities required in the Council Planning Scheme definition of a dwelling, then it will most likely not be in breach of regulations, despite evidence that the building provides bathroom, lounge and bedroom facilities.
To reiterate though, a number of factors will be taken into consideration which may, collectively, indicate that a building is being used as a dwelling.
Thankfully, it would seem that if an outbuilding is determined to be a dwelling by Council, the action required on the owner’s part to bring the building in line with regulations may be as simple as removing the kitchen sink.
By Blaise Alexander, Solicitor, Lovegrove Smith & Cotton
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© Lovegrove Smith & Cotton 2014