The Business A small change can make a big difference

Improving the community care accommodation provisions

As the cliché goes, ‘don’t sweat the small stuff’. But often small stuff can make a big difference. Take the Community Care Accommodation provisions at Clause 52.22 as an example. A small change can reduce red tape, which reduces cost and is able to provide housing sooner for those most in need.

I write this article not long after the Victorian government announced a $5.3 billion spend over 4 years for 12,000 new social housing units. This represents a 10% increase to existing stocks. Fantastic stuff and long overdue.

Governments have long recognised that social housing is able to be provided by private entities, generally by not-for-profit organisations. In fact, Homes for Victorians (2017), which underpinned Amendment VC152 that introduced the current Clause 52.22, defines community housing and social housing as:

Community Housing

Housing owned or managed by community housing agencies for low income people, including those eligible for public housing. Community housing agencies are regulated by the Government.

Social Housing

Social housing is an umbrella term that includes both public housing and community housing. Its provision usually involves some degree of subsidy.1

Community Care Accommodation is defined by the Planning Scheme as ‘land used to provide accommodation and care services. It includes permanent, temporary and emergency accommodation. It may include supervisory staff and support services for residents and visitors’.

Amendment VC152 replaced the old crisis accommodation and rooming house provisions. It introduced planning permit exemption criteria for the use and development of community care accommodation.

The Minister’s reasons for providing the exemptions nominate ‘streamlining renewal and development of these facilities’. The Consultation Information prepared by the Department of Environment, Land, Water and Planning (DELWP) for the purpose of VC152 reference the need to: a) reduce discrimination against disabled or disadvantaged people seeking housing; and b) to avoid objections to permit applications based on the physical, mental or social characteristics for the residents to be accommodated.

Sam D’Amico Director, Ratio Consultants

The introduction of the exemptions was clearly directed towards removing ‘red tape’ and facilitating housing for those most vulnerable.

Again, fantastic stuff, so what’s the issue? Well, one of the exemption criteria for buildings and works associated with community care accommodation is:

The development is funded by, or carried out by or on behalf of, a government department or public authority, including a public authority established for a public purpose under a Commonwealth Act.

In a declaration proceeding before VCAT, Senior Member Martin determined in the matter of St John of God Health Care v Melton CC [2021] VCAT 1263 (11 November 2020)2 that:

32. Following this approach, and with particular reference to the text in the first bullet point of the ‘building and works’ exemption, the gist of the applicant’s case here is that the development of the two proposed buildings would be ‘relevantly funded’ by the National Disability Insurance Agency (NDIA) and any other relevant public funding sources, such that the exemption applies. I refer here to the various submissions made about the ‘funding of the development’, as set out in the Appendix to this decision.

33. The essence of same is that there is in practice no other way for the applicant to source the funds to construct the two proposed buildings, other than for the applicant to initially essentially meet the cost of same, then gradually pay off that debt through the cash flow from the NDIS or other relevant public funding sources. In particular, at paragraph 41 of the applicant’s primary submissions, it is stated (with my highlighting) that:

The proposed use and development is funded by and would not occur but for the funding from the NDIS and other Commonwealth funding sources. Although SJGHC is a ‘middle person’ in terms of facilitating the development of the housing which Marillac provided, there is clear and uncontroversial nexus to the funding through the NDIA and NDIS program and Commonwealth funding sources.

Essentially, because the NDIS funding comes after the development is finalised, Senior Member Martin found that the development component of the concept does not meet the exemption criteria of Clause 52.22 and requires a planning permit. I do not know whether the decision will be appealed to the Supreme Court, so I will leave it to the lawyers to debate whether the decision was correct.

Whether the decision was right or wrong, I’m suggesting the system needs refining to avoid future debate in relation to the provision of this form of housing in the future.

In relation to the application referred to in the declaration proceeding, the application for planning permit was lodged with Council on 5 January 2020; come the start of February 2021, a decision was still pending from the Tribunal on the merits of the application. Despite being exempt from notice due to the express purpose of Clause 52.22 to ‘support the confidentiality of community care accommodation’, Council ‘informally’ notified surrounding property owners and occupiers of the application. More than 100 objections were received, which no doubt informed the Councillors’ decision to refuse the application, contrary to the Council Planner recommendation to support the proposal. The matter proceeded to a declaration proceeding referred to above and a subsequent merits hearing, with a decision being issued in mid-February 2021.

So not only has over a year been lost before a decision has been made, there is also the obvious delay in commencing the development. Not to mention the cost to a not-for-profit organisation through holding costs, legal fees, planning fees, expert fees and hearing fees. This is the principal issue. Time and money that would be better spent on providing housing for those in need is wasted, which goes directly against the purpose of VC152.

A small change to Clause 52.22 to recognise that funding for community care accommodation may come in different forms and stages of the development would remove this red tape, reduce costs for not-for-profits, and enable them to do what is most important – provide housing for those most vulnerable.

1 Homes for Victorians (2017)

2 I must declare that I was engaged as an independent expert town planner by St John of God for the merits hearing of the aforementioned matter, but had no involvement in the application to Council or the declaration proceeding.

Sam D’Amico, Director of ratio: has 20 years’ experience as a town planner at both local government and in private practice. samd@ratio.com.au

If you missed the fantastic range of conference presentations in November last year you can still access all or parts of the conference online in your own time. Full recordings are now available for viewing on our online platform. We have put together some pricing options below, so that the conference is accessible to everyone.

Total conference includes all webinars and keynotes/panels

Member $225, Non Member $255

Webinars

One webinar – Member $30, Non member $50

Three webinar bundle – Member $70, Non member $90

All webinars – Member $90, Non member $110

Keynotes/Panels

The conference brochure can be viewed here.

For full information go to our website here. To purchase any or all of these presentations please email admin@vpela.org.au providing details of your requirements or phone 9813 2801.