Magistrates’ Court affirms Improvement Notice issued under the Public Health and Wellbeing Act
Background
The applicant, being an operator of a rooming house in the City of Casey lodged an appeal to the Dandenong Magistrates’ Court against an Improvement Notice issued pursuant to section 194 of the Public Health and Wellbeing Act 2008 (“PHWA”).
The operator had divided a 21m² room into four separate bedrooms with fixed partitions. The operator referred to the rooms as Pods (“Pod”). Each Pod measured approximately 3.7m² and contained a bed, bedding, a wardrobe, a television and were separated by walls which were nearly to the ceiling. A lockable entry door was provided to each Pod.
The Improvement Notice
Regulation 17(2) of the Public Health and Wellbeing Regulations 2009 (“PHWR”) provides that a ‘proprietor of prescribed accommodation must not permit a room in the prescribed accommodation to be used as a bedroom if it has a floor area of less than 7.5 square metres’. Council officers formed the view that each Pod was a bedroom and as each Pod was 3.7m², each did not meet the requirements of regulation 17 of the PHWR. An Improvement Notice was issued which required the operator to:
- cease using the Pods as bedrooms;
- ensure all bedrooms used within the rooming house have a minimum floor area of 7.5 meters squared or greater; and
- notify Council upon completion to arrange an inspection.
Grounds of Appeal
The operator lodged an appeal against the issue of the Improvement Notice with the Dandenong Magistrates’ Court and sought an order for the Improvement Notice to be revoked on the following grounds:
- that the demountable partitions are not walls;
- that the demountable partitions do not go from the floor to the ceiling to make a wall;
- the demountable partitions and doors are free standing under its own weight;
- the partitions are not affixed to the walls of the room to any extent with screws, nails, bolts or plaster; and
- the demountable partition system can be easily removed without causing damage to the property/room walls.
Magistrates’ Court Decision
The matter proceeded before His Honour Magistrate Shultz who had to decide to affirm or revoke the Improvement Notice. Council was represented by Russell Kennedy Lawyers and the operator represented herself. The Court heard submissions from each party and a Council officer gave evidence.
The terms “room” and “bedroom” are not defined in the PHWA and PHWR. The ordinary meaning of each word was put to the Court from the definitions contained in the Macquarie Dictionary. In the Macquarie Dictionary, a “room” is defined in the appropriate context as “a portion of space within a building or other structure, separated by walls or partitions from other parts”. A “bedroom” is defined in the Macquarie Dictionary as “a room set aside to sleep in”.
After hearing evidence and submissions, the Court applied these definitions and determined that each Pod was a bedroom. In making the decision, the Magistrate applied the “duck test” in that if it looks like a duck, swims like a duck, and quacks like a duck, then it is a duck and applied this to a bedroom.
His Honour Magistrate Shultz said that in his views the Pods were occupied as a bedroom, they consisted of a confined space, contained a bed and had all the usual equipment contained in a bedroom. As each Pod was found to be a bedroom they were also found not to be compliant with the PHWR in that they were each approximately half the size they should be. The operator was ordered to comply with the Improvement Notice within 60 days.
Please contact our Enforcement team should you require any further advice: Ian Pridgeon, Marcus Heath, Daniel Silfo, Elizabeth Flanagan and Angelina Bell.
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