#28254

My 2nd reply to Jimmy & Lady Penelope.

I enquired once with one of the Eastern Suburbs councils about dwelling, domicile, the council’s LEP etc and this was their reply :

In the town planning sense the question one must ask is: Is the premises being occupied cognate with its approved use a dwelling?

Ultimately the answer to this question, I think, is determined by how the premises is occupied and not necessarily by whom it is occupied by, and as such the two questions that are fundamental to this determination are:

1) Is the premises being used as a single household (see Blacktown City Council v Haddad [2012] NSWLEC 224 as to what is meant by the term: ‘single household’) ?

If the answer to this is “yes” then the next question is:

2) Does this occupation satisfy the degree of permanency of occupation that attaches to a dwelling or domicile (there are a number of legal cases that discuss this ‘critical’ aspect of dwelling usage which I think are instructive. Some of those cases you may be able to access on the NSW Caselaw website and are cited as follows: Dobrohotoff v Bennic [2013] NSWLEC 61Blacktown City Council v Haddad [2012] NSWLEC 224, City of Sydney Council v Waldorf Apartments Hotel Sydney Pty Ltd [2008] NSWLEC 97; (2008) 158 LGERA 67, Foster v Sutherland Shire Council [2001] NSWLEC 89; (2001) 115 LGERA 130, KJD York Management Services Pty Ltd v City of Sydney Council [2006] NSWLEC 218; (2006) 148 LGERA 117 to name a few).

If the answer to this question too is yes, than, in my opinion, the occupation of the premises is consistent with that of a dwelling.