The recent Victorian Civil and Administrative Tribunal (VCAT) decision of Mornington Peninsula SC v Premier Homes Pty Ltd (Red Dot) [2021] VCAT 94 provides valuable insight for the interpretation of the definition of a dependent persons unit (DPUs), but no definitive criteria has yet been established.   Each case will be determined on its own set of facts and circumstances.

Key issues

The Council was seeking declarations from the Tribunal[1] that six demountable DPUs constructed by Premier Homes were not ‘movable buildings’ and therefore did not meet the definition of a DPU under the Mornington Peninsula Planning Scheme (Scheme). 

The two key issues for consideration in this case came down to the following:

  1. The meaning of the phrase “designed to be moved from place to place on more than one occasion” in the above definition; and
  2. Whether the six buildings constructed by Premier Homes fell within that meaning.

The Council’s application failed on all grounds, and the Tribunal declined to make a declaration that a DPU must be able to be moved in large segments to be considered ‘designed to be moved’.

Background

DPUs provide accommodation for thousands of dependent people across Victoria.  They fulfil a social need for both aged persons and dependents that cannot live on their own, providing an economical alternative to aged care facilities.  Dependents can remain in their family’s care and company, treating them with dignity, autonomy and independence.  This social objective is enhanced where the DPU is a good quality, insulated building providing a pleasant place to live and allowing a degree of independence to the occupier.

Premier Homes builds moveable buildings in one of two ways, using either the transportable or panel demountable technique. 

  • Demountable DPUs are constructed in a way that may be moved from place to place by dismantling the building into segments that are light enough to be lifted by several people in accordance with the requirements of the Occupational Health and Safety Act 2004 (Vic) and transported by truck and rebuilt at another location with minimal wastage and destruction.
  • Transportable DPUs are constructed in a way that allows it to be moved by crane in a small number of very large components or modules. Each component is roughly the size of a shipping container. 

The Council considered that Premier’s demountable model did not meet the definition of ‘designed to be moved’, as the level of deconstruction required before relocation was too great. 

Regulatory framework  

The Scheme defines a DPUs as ‘a moveable building on the same lot as an existing dwelling and used to provide accommodation for a person dependent on a resident of the existing dwelling’ (see clause 73.03). 

A ‘moveable building’ is defined as “a structure, other than a tent, caravan or vehicle, which is designed to be moved from place to place on more than one occasion” (see clause 73.01). 

A planning permit is not required for the design and construction of a DPU.  A building permit is required.

Interpretation of the Scheme

The VCAT held that the provisions of a planning scheme should (a) be construed in accordance with the principles of statutory construction generally, and (b) not be construed in isolation, but interpreted in the context of the regulatory framework of which they form part.

In circumstances where the Scheme does not provide a set of criteria for deciding whether a building is ‘designed to be moved’, the VCAT considered that it was not necessary to impose a rigid test or criteria to decide this matter, where none existed in the regulatory control. This meant that while factors such as the design process and intent, the nature of the component parts, the level of wastage or reuse, the level of retrofitting, and the ease and timing of deconstruction, transportation and reconstruction may be relevant, none of these matters were said to be determinate as a set of fixed criteria.  

Rather, the phrase ‘designed to be moved’ was to be given its natural and ordinary meaning, having regard to all the circumstances of the buildings in question.  This is significant because whether a building a meets with definition of a DPU will ultimately depend on its own set of facts and circumstances and this decision will not be applied universally.

Tribunal’s findings regarding Premier Homes DPUs

The Council’s application was based on a contention that the buildings constructed by Premier Homes were not “designed to be moved…on more than one occasion” in accordance with the definition in the Scheme.  The difficulty faced by the Tribunal was that the Scheme provides no further guidance about what design elements are required for this definition to be met.

Premier Homes advanced evidence of a number of ‘moveable design features’ in its buildings which reflected deliberate design choices to facilitate movability.  Indeed, one of its buildings (that was not the subject of the application) has been successfully relocated four times.

The Tribunal concluded that Premier’s DPUs were designed to be moved, and placed the most importance on the following key features in Premier’s design:

  1. The manner of the construction of the wall segments;
  2. The manner of the wiring, to ensure that all electrical cables come to the top plate to facilitate the segmentation of the walls; and
  3. The way in which the plumbing is installed through the floor rather than the walls.

The VCAT considered that the design of key structural and servicing components of a building were of greater significance than items like fixtures and fittings in determining if a building was designed to be moved and complied with the Scheme.

Regulatory reform

In its reasons, the VCAT commented on the difficulties in applying the current regulatory framework, and referred the matter to the Minister for Planning to consider whether any regulatory reform or clarification is warranted.

The VCAT emphasised, however, that this proceeding was decided on the facts and evidence before it, and not as a test case. It was noted that regulatory reform is a matter for government. 

This case demonstrates that declaration or enforcement proceedings are not necessarily an effective way to seek regulatory reform, and that this should be done through the appropriate channels.

The VCAT’s full reasons can be found using this link.

[1] Under section 149A(1)(a) of the Planning and Environment Act 1987 (Vic)