A recent decision of the Victorian Civil and Administrative Tribunal (VCAT) in Japara Holdings Pty Ltd v Bayside CC [2022] VCAT 390 (Japara) has provided guidance on how to approach the task of characterising a proposed land use for planning purposes. The decision also highlights the importance of permit applicants being careful about what they say a proposed land use is because the focus of the decision maker's enquiry must be whether the application satisfies the definition of the use nominated in the application.

This case arose after Bayside City Council (Council) refused to grant a permit for the construction of a four storey residential aged care facility in Brighton. The proposed development includes a 'southern wing' comprising of two and three bedroom 'low acuity suites' (which do not have acute care or close monitoring within the suites). The applicant, Japara Property Holdings Pty Ltd (Applicant) successfully sought review of the Council's decision.

One of the key issues was whether the whole proposed development was properly characterised as a 'residential aged care facility' under the Bayside Planning Scheme (Scheme). Council argued that the proposed two and three bedroom suites located in the southern wing were more appropriately characterised as 'independent living units', falling within the land use definition of 'retirement village'. This issue was significant because (among other things) a retirement village cannot exceed a height of two storeys on this land under the relevant provisions of the Scheme.

Characterising a proposed use of land is a mixed question of law and fact

There was some discussion about whether the characterisation of the proposed land use is a question of law or a question of fact. VCAT held that the characterisation of the proposed land use is a mixed question of law and fact. It is necessary to first interpret and construe the relevant terms within a planning scheme (a question of law) and then apply those definitions to the facts at hand (a question of fact).

The legal question: construing the land use definitions in the Scheme

VCAT held that words used in planning scheme definitions must be given their ordinary meaning where:

• the words are clear and unambiguous;
• doing so leads to an outcome that is consistent and harmonious with other relevant clauses in the planning scheme;
• the ordinary meaning of the words can be intelligibly applied to the subject matter; and
• the grammar used in the definition does not lead to any different conclusion.

'Residential aged care facility' and 'retirement village' are defined in the Scheme as follows:

• Residential aged care facility - Land used to provide accommodation and personal or nursing care for the aged. It may include recreational, health or laundry facilities and services for residents of the facility.
• Retirement village - Land used to provide permanent accommodation for retired people or the aged and may include communal recreational or medical facilities for residents of the village.

Affording these words their ordinary meaning, VCAT found that the meaning of 'residential aged care facility' is mutually exclusive from the meaning of 'retirement village'.

VCAT's careful consideration of these definitions in Japara is likely to be of assistance in future cases. In particular:

a. regarding the definition of residential aged care facility:

• the first component of the definition is mandatory – the land must be used to provide accommodation and personal or nursing care specifically for 'the aged';
• the second component of the definition is discretionary – the land may include recreational, health or laundry facilities and services for residents;
• the definition does not require that both personal care and nursing care be provided;
• there is no restriction on the form or type of accommodation that may be provided, whether permanent or temporary;
• there is no restriction on the standard of fittings or fixtures within the accommodation; and
• the words 'personal’, ‘nursing’, ‘care’ and ‘the aged’ should be given their ordinary and natural meaning;

b. regarding the definition of retirement village:

• the first component of the definition is mandatory – the land must be used to provide permanent accommodation for retired people or the aged;
• the second component of the definition is discretionary – the land may include communal recreational or medical facilities for residents of the village;
• the type of accommodation must be 'permanent';
• the accommodation may be provided for retired people or the aged or both; and
• the words 'retired' and 'accommodation' should be given their ordinary and natural meaning.

The factual question: considering whether the proposal meets the land use definition

VCAT held that when assessing an application for a particular use, the focus of the enquiry must be whether the application satisfies the definition of the use nominated in the application. It is not for the decision maker to consider which land use definition 'best fits' or 'better fits', nor should it import its own experiences or preferences or the community’s expectations into its consideration of land use definitions. If, by applying orthodox legal principles, it is found that the application is for the nominated use, the application must be assessed accordingly. VCAT confirmed these principles as follows:

• in planning law, a use must be for a purpose;
• the purpose of a development is objective in the sense that it is the end to which land is seen to be served by the carrying out of the development, not subjective in the sense that it is the object in the minds of the persons carrying out the development;
• in determining whether land is used for a particular purpose, it is necessary to enquire how that purpose can be achieved;
• a use of land can be for two or more purposes. It may be necessary to enquire if one purpose is subservient to another purpose;
• the task of characterisation involves questions of fact and degree;
• the appropriate characterisation of the use should be described at a level of generality and not approached through a meticulous examination of the details or processes or activities;
• the task of interpretation/characterisation ought not be answered, particularly in a town planning context, by reference to something proposed not within the designated purpose, but by reference to the ‘real and substantial purpose’ of the use of the land in question.

Applying these principles to the application before it, VCAT held that the accommodation proposed in the southern wing satisfied the definition of 'residential aged care facility' because:

• The definition of 'residential aged care facility' does not prescribe the type, size or layout of accommodation that may be provided and there is no exclusion to the provision of apartment style accommodation that may be self-contained.
• The definition does not prescribe that the standard of fixtures and fittings cannot be of a high or even luxurious standard. VCAT stated: '[f]rankly, the implied suggestion in Council’s submission that accommodation for the aged cannot be of a high or luxurious standard is disappointing.'
• There is no reason to read into the definition a requirement that all residents be provided with a high level of acute care, or the same level of personal care or nursing care.
• The inclusion of a nursing station and emergency or care call buttons within each accommodation demonstrates the intention to provide nursing care to the residents in the southern wing. Council's argument that the presence of the nursing stations in the southern wing were tokenistic was rejected.
• In relation to Council's argument that the southern wing is more appropriately characterised as 'independent living units', VCAT stated: '[t]here is no planning purpose to interpret the clear and unambiguous words of the definition to deprive the aged of the ability, or possibility, of living as independently as possible within a residential aged care facility where all of the requirements of the definition are otherwise met.'

VCAT ultimately set aside the Council's decision and granted the permit, allowing the use and construction of the residential aged care facility.