Posted on April 30, 2012 by

Unlawful use of a ‘dwelling’?

In the recent case of Wollondilly Shire Council v 820 Cawdor Road Pty Ltd [2012] NSWLEC 71, Lloyd AJ of the Land and Environment Court had to decide whether to exercise the Court’s discretion to make orders that would have had the effect of evicting a 67 year old man from a dilapidated building situated on a 99 hectare rural property, that the man had lived in for the past 20 years.

Lloyd AJ emphatically declined to make the orders sought.

The facts of the case were that the building had been erected in the 1890s and had no electricity, running water, kitchen, laundry, bathroom or toilet facilities. The man, Mr Garton, cooked using an open fire or gas stove. He used a toilet in another empty building on the property, which was connected to a septic tank.

Mr Garton had a history of Manic Depressive Disorder and the evidence before Lloyd AJ was that he had learned to manage this disorder by withdrawing from society and maintaining a reclusive and basic lifestyle. The evidence also revealed that Mr Garton had a strong attachment to the building.

Also situated on the property were two other houses, a main house and a rural worker’s dwelling, both of which had been approved by the Council. The owners of the property were aware that Mr Garton was living in the building and were supportive of him. They were described by Mr Garton as a sort of ‘de facto family’.

The proceedings in the Land and Environment Court were brought by the Council who claimed that Mr Garton’s use of the building contravened the Wollondilly Local Environmental Plan 2011 (WLEP), because under the WLEP, more than two ‘dwellings’ on the land were prohibited. The Council sought injunctive relief and declarations.

Among the Council’s concerns were that the building lacked structural stability and was unsafe. The uncontested expert evidence in the case was that the structure was ‘manifestly unsound and unsafe’ and at risk of collapse due to wind action. The expert did, however, concede in cross examination that the structure ‘could have a lifespan of up to a further ten years in the absence of any abnormal wind events.’

In declining to make the orders sought, Lloyd AJ emphasised the unfettered discretion retained by the Court under s124 of the Environmental Planning and Assessment Act 1979. His Honour stated that ‘[w]hether Mr Garton’s occupation of the building is lawful or unlawful, his environmental footprint is minimal.’ Mr Garton did not have anywhere else to live, and the evidence was that ordering him to leave the building would ‘likely
prove catastrophic to his mental state’. Lloyd AJ noted the statement of Kirby P in Warringah Shire Council v Sedevcic (1978) 10 NSWLR 355 that courts will be ‘alert to insensitive, unthinking administration in this as in other fields of law.’

Whilst Lloyd AJ did have some reservations about the structural stability of the building, His Honour noted that Mr Garton did not want the building to be upgraded and that if the building became dangerous, Mr Garton could stay in a disused caravan on the property whilst repairs were carried out. Ultimately however, Lloyd AJ considered this a matter for Mr Garton and the owners of the property.

Lloyd AJ then went on to consider whether Mr Garton’s use of the building was in fact unlawful.

Under the WLEP a ‘dwelling’ is defined as a ‘room or suite of rooms occupied or so used or so constructed as to be capable of being occupied or used as a separate domicile.’

The respondents argued that Mr Garton’s use was not unlawful. Amongst other things, they contended that Mr Garton was merely camping in the building and using it as a place of shelter, and that the building was not a ‘dwelling’ within the meaning of the WLEP. This was because the building did not have facilities such as a kitchen, bathroom, toilet, running water, stove and electricity, which ordinarily define a building as a dwelling.

Lloyd AJ rejected the respondents’ arguments, pointing out that there were two limbs to the definition of a ‘dwelling’ in the WLEP. A ‘dwelling’ is:

‘[1] a room or suite of rooms occupied or so used as a separate domicile, or

[2] a room or suite of rooms so constructed or adapted as to be capable of being occupied or used as a separate domicile.’

The respondents had focused their arguments on the second limb of the definition, not the first. Turning to the first limb of the definition, the question was whether Mr Garton had been using or occupying the building as a ‘separate domicile’.

Relying on authority, Lloyd AJ concluded that ‘in this context “domicile” embodies the
idea of a permanent home or a significant degree of permanency or occupation’. Mr
Garton had lived in the building continuously for 20 years and there was nowhere else that he could call home.

His Honour went on to state that ‘[t]he place that a person uses as his domicile does not necessarily have to contain the facilities that one would normally find in a house’ and
that a ‘caravan, or even a tent’ might be a domicile ‘as long as it has a sufficient degree of permanency of habituation or occupancy.’ It followed that Mr Garton had been occupying and using the building as a ‘separate domicile’ and therefore it was a ‘dwelling’ for the
purposes of the WLEP.

A further issue in the case was that Mr Garton’s use of the toilet in the separate building was unlawful because there was no system of sewage management within the meaning of s68A of the Local Government Act 1993. The issue was resolved by the owners of the property giving an undertaking that they would not allow use of the toilet until the Council granted the relevant approval.

Comment

It is important to note that Lloyd AJ’s decision was made in the context of enforcement proceedings in the Court’s class 4 jurisdiction and the circumstances of the case were unique. Nonetheless, His Honour’s conclusions on the issue of whether the building in question was a ‘dwelling’ are significant, and warrant further consideration.

On the one hand, a room or suite of rooms that might be sought to be used as a ‘dwelling’ in the future, must contain certain facilities in order to be capable of being a separate domicile. They have to contain the kinds of things that ordinarily render a building fit for human habitation on a more or less permanent basis. The definition of ‘dwelling’ does not specify what those requirements are. The caselaw suggests that at a minimum, kitchen and bathroom facilities are required.

On the other hand, a room or suite of rooms that have been occupied with the requisite degree of permanency, irrespective of their facilities, will also meet the definition of a ‘dwelling’, based on Lloyd J’s decision in this case.

The use of a room, perhaps even a tent, on a more or less permanent basis will result in a finding that the room is a dwelling.

It is to be noted that the defintion of dwelling in the WLEP which was considered in this case is that contained in the Standard Instrument – Local Environmental Plan, and will therefore appear in many local environmental plans across the state.

This decision may be of assistance to councils in circumstances where, for example, they are seeking to prevent a person from continuing to dwell in an inappropriate location, even if that person is living in a tent, or other structure that does not contain the types of facilities mentioned above.

The decision may have other interesting implications, particularly in relation to existing use rights.