The decision of the Tribunal in Studio Homes Victoria Pty Ltd v Brimbank CC late last year [2022] VCAT 1371 cements the position as to what constitutes a rooming house for the purpose of the Planning Scheme. The Tribunal found rooms that were essentially self-contained did not qualify. There must be a genuine reliance on shared facilities. This is an important decision since the changes to the VPPs which removed the previous provisions for shared housing and crisis accommodation.
The property
Studio Homes Victoria Pty Ltd (the Applicant) made an application to VCAT under section 149A of the Planning and Environment Act 1987 (PE Act) for a declaration that no planning permit was required for a rooming house development in St Albans.
The key characteristics of the building included:
- a shared entry into a common area comprised of a kitchen/meals area of approximately 3 x 4 metres in clear floor area. The kitchen included a cooktop and rangehood, large shared fridge, coffee maker, kettle, toaster, cutlery, crockery and other shared facilities. A high table was provided to seat four people, and there was a wall mounted television;
- a shared outdoor area provided a dining table and chairs below a building under croft together with an area with artificial grass;
- the common area also contained a cupboard with laundry facilities (European laundry);
- shared car parking spaces within the property frontage and bin storage;
- five studios at ground floor level. Each studio had a similar layout with ensuite (toilet, shower and basin), a fold out (Murphy) bed and a series of cupboards including a sink with inbuilt drainage tray. A small fridge was provided in the cabinetry nook;
- four additional studios were provided at upper floor level with a similar layout and facilities;
- each studio was furnished including a couch, small table and chairs or desk and chairs and has a small wall mounted television; and
- each studio has its own hot water service within the cabinetry next to the sink and there are separate water and electricity meters and letterboxes for each studio.
The advertisement to rent a room emphasised ‘private, independent living’ and the self-contained nature of facilities provided within each private studio. To the extent that it referred to community areas, it generally referred to this as an ‘added benefit’ or an ‘opportunity’. It did not refer to integrated or shared living arrangements per se.
What is a rooming house?
Section 3 of the Residential Tenancies Act (RTA) defines a rooming house as:
“…a building, other than an SDA enrolled dwelling, in which there is one or more rooms available for occupancy on payment of rent—”
- in which the total number of people who may occupy those rooms is not less than 4; or
- in respect of which a declaration [by the Minister] under section 19(2) or (3) is in force [not applicable].
Do rooming houses require permits?
Clause 52.23-3 of the Planning Scheme details that:
“Any requirement in the General Residential Zone, Mixed Use Zone, Neighbourhood Residential Zone, Residential Growth Zone or Township Zone to obtain a permit to construct a building or construct or carry out works for a rooming house does not apply if all of the following requirements are met:
- No more than 9 bedrooms are developed on the land.
- Bedrooms can only be accessed from within the building.
- The total floor area of all buildings on the land, measured from the outside of external walls or the centre of party walls, does not exceed 300 square metres, excluding outbuildings.
- If the development is in the General Residential Zone or Neighbourhood Residential Zone, a garden area is provided in accordance with the minimum garden area requirement specified in the zone.
- Shared entry facilities and common areas, including a kitchen and living area, are provided.”
The Tribunal had to determine whether the proposal could properly be characterised as a rooming house.
Tribunal decision
At paragraph 52, the Tribunal found that the fact that the operator is a licensed rooming house provider under the RTA was relevant but not determinative.
At paragraph 59, the Tribunal upheld National Lifestyle Villages Pty Ltd v Wyndham CC (National Lifestyles) where the Tribunal determined that:
“If a use clearly falls within more than one specified land use term, the proposed user is entitled to take advantage of the most (or more) favourable provision. But it will not always be appropriate to regard a use as falling within more than one specified land use term. This is because some parts of the scheme are structured so as to invite a choice between different land use terms, at least where an activity can obviously or commonly fit within a specified term…Having regard to this context, it is the intent of the scheme that in characterising a use of the type proposed a choice be made having regard to what is the best fit (or, in the present context, the better fit).”
Having regard to National Lifestyles, the Tribunal determined that the real and substantial purpose of the land is for accommodation within the form of nine self-contained studios with exclusive possession for each resident.
The following characteristics were considered:
- each studio has a serviceable kitchenette of approximately 2 metres in length with a sink, drainage tray, food preparation/storage area, fridge, cabinetry typical of a kitchen and a separate hot water unit;
- instead of shared lounge areas, individual rooms contain a couch, table, chairs and television;
- separate electricity and water meters are provided for each studio;
- there are separate letterboxes for each studio;
- entry is through a shared doorway into the common area; and
- there are common laundry facilities.
More particularly, at paragraph 70, the Tribunal noted that the studios had been principally designed to enable a resident to rely exclusively on private facilities within each studio (including a private garden or balcony), rather than necessitating or expecting shared use of any common facilities, other than the general parking area if the resident has a car.
On this basis, the Tribunal ultimately found that the studios were more appropriately defined as self-contained accommodation. Even though, the development overall could meet the technical requirements for the exemption in Clause 52.23, the proposed use and development is not properly characterised as a rooming house. This precludes it from taking the benefit of these exemptions.
The Tribunal refused to make the declaration sought by the Applicant, that no planning permit is required for the development of the land for a rooming house.
This article was written by David Vorchheimer, Partner and Sophie Pinkus, Solicitor.
