Homelessness shelters within ‘Places of Worship’: A new Practice Guideline and changes to the Building Rules
Two new statutory instruments have been introduced in recent weeks to address apparent shortfalls in the regulatory framework controlling homelessness services undertaken by church communities.
The first is the introduction of a new Practice Guideline 2 – Place of Worship (Guideline), pursuant to section 43 of the Planning, Development and Infrastructure Act 2016 (Act). The Guideline expands the list of activities that may be lawfully undertaken on a site approved as a place of worship, as part of the assessment of that use under the Planning & Design Code (P&D Code).
The second instrument is a new Ministerial Building Standard MBS 012, ‘Temporary accommodation in existing places of worship’ (MBS 12), which contains the minimum requirements in order for places of worship to provide temporary homelessness shelter (which would ordinarily be a Class 3 building under the Building Code) and be granted Building Consent accordingly.
The Guideline is available to read here, and MBS 12 is available to read here.
Guideline – defining ‘social, educational and charitable activities’ under the P&D Code
The existing definition under Part 7 of the P&D Code for assessment of development proposing to include use as a ‘place of worship’ is as follows:
‘[Place of worship] means premises used by an organised group for worship and religious activities. The use may include facilities for social, education and charitable activities associated with the congregation.’
(Underlining added)
That charitable activities need to be ‘associated with’ the congregation is a potential area of contention with respect to homelessness support services undertaken by church communities.
Clause 6 of the Guideline now clarifies that this definition includes:
‘the place of worship being used as accommodation, which may or may not include the provision of meals, up to two nights a week for no more than 13 weeks per year for homeless people.’
(Underlining added)
The definition is effectively such that accommodation services, if provided, must be of a temporary nature, to fall within the limits of the use classification under the P&D Code.
MBS 12 – Building Consent assessment – Temporary use requirements
Regulation 3E of the Planning, Development and Infrastructure (General) Regulations 2017 (General Regulations) prescribes that any ‘work of activity that results in a change to the classification of a building under the Building Code’ constitutes a form of building work under the Act, and therefore is a form of development requiring Building Consent and development approval.
Irrespective of the application of the Guideline, regulation 3E of the General Regulations maintains that Building Consent is still required where lodging or boarding services are provided.
MBS 12 now codifies the extent of assessment required in the case of temporary homelessness shelters within places of worship [albeit limited to a single storey buildings]. MBS 12 further defines the term ‘temporary use’ consistent with the Guideline:
‘Temporary use means the premises is used for accommodation purposes, which may or may not include the provision of meals, for up to two nights a week for no more than 13 weeks per year.’
In accordance with section 1.5 of MBS 12:
Where regulation 3E of the [General] Regulations applies and a change of classification arises as a result of the temporary use of a place of worship, the requirements in Section 2 of this Ministerial Building Standard must be satisfied to grant building consent (and no further assessment against the Building Rules is required).
(Underlining added)
Section 2 of MBS 12 identifies basic requirements for access and egress, services and equipment (fire extinguishers, smoke detection, and emergency exit signage), and health and amenity (accessible sanitary facilities), and the corresponding provisions that must be met under the Building Code. Provided these provisions are met, no further assessment is necessary for the purpose of granting Building Consent.
Considerations for lawful operation of places of worship
It would seem the intent of the two instruments is that existing places of worship may continue to undertake charitable activities comprising limited homelessness services, without changing the use of land. However, the Guideline does not affect existing use rights. In that regard, it is not considered that existing use rights would generally allow places of worship to be used for temporary shelter and that a change of use development application would likely be required for it (even though it would not be needed for new places of worship).
It is important to note the Guideline is only relevant to the assessment of development applications and interpreting development authorisations granted after its introduction, not determining existing use rights. Its impact is therefore limited to development applications lodged following its introduction.
This complication has the capacity to make development enforcement more complex as the extent (if any) of temporary shelter that can occur will differ depending upon whether the place of worship was approved before or after the introduction of the Guideline.
Even in circumstances where a planning consent is not required for temporary shelter on the basis of existing use rights, assessment against the Building Rules (in accordance with MBS 12) is still a requirement, which may have the effect that significant alterations are required to allow it to occur.
While these instruments seek to introduce greater certainty from an assessment perspective, there is potentially greater uncertainty from an enforcement perspective. We encourage councils to assess each instance on a case-by-case basis and seek advice where necessary.
For more specific information on any of the material contained in this article please contact Aden Miegel on +61 8 8217 1342 or amiegel@normans.com.au or Nicholas Munday on +61 8 8217 1381 or nmunday@normans.com.au.
