Owner Builder Permit Granted Due to Special Circumstances

The Tribunal granted an owner builder permit to the claimant due to special circumstances, overturning the Respondent's refusal. The claimant sought to build a retirement home but could not afford to hire a licensed contractor.

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: [NAME] v [NAME] [2016] [NAME] 57 Hearing dates: 3 February 2016 Date of orders: 11 May 2016 Decision date: 11 May 2016 Jurisdiction: Occupational Division Before: A Scahill, Senior Member Decision: The Respondent's decision is set aside Catchwords: Owner [NAME] permit; dual occupancy; special circumstances Legislation Cited: Civil and Administrative Tribunal Act 2013 Environmental Planning and Assessment Act 1979 Evidence Act 1995 Home Building Act 1989 Standard Instrument (Local Environmental Plans) Order 2006. Cases Cited: [NAME] v Director General of Social Security [1984] AATA 176 [NAME] v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 [NAME], Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 99 Texts Cited: Davie, T: Annotated Home Building Act 1989 [COMPANY] St Leonards, 2000 Category: Principal judgment Parties: [NAME] (Applicant) [NAME] (Respondent) Representation: Counsel: [redacted]

Solicitors: [redacted] [NAME] (Respondent) File Number(s): 1520211

Reasons for decision

What the Tribunal decided 1. The Tribunal set aside the Respondent's decision to refuse the owner [NAME] permit to the Applicant.

Background 1. On 6 July 2015 [NAME] applied to the Respondent for an owner [NAME] permit to construct a dwelling at [NAME]'s property at [ADDRESS], New South Wales. The Respondent refused the owner [NAME] permit on 13 July 2015. [NAME] sought internal review of that decision on 3 August 2015. The Respondent affirmed its decision to refuse [NAME] an owner [NAME] permit in its internal review decision of 23 September 2015. [NAME] filed an application to review this decision in the Tribunal on 19 October 2015. 2. [NAME] had lodged an application on 17 September 2014 with Liverpool Council seeking approval for the development which was subject of the owner-[NAME] permit application. This was approved by Liverpool Council in May 2015. 3. [NAME] had sought the owner [NAME] permit in order to construct the approved single storey dwelling on the property. [NAME] contended that the dwelling is to be [NAME]'s "dream home" for use as a retirement home.

Basis of Refusal of Owner/[NAME] permit 1. The Respondent refused the issue of an owner [NAME] permit to [NAME] under section 32 (1A) of the Home Building Act 1989 (HBA).

2. In January 2015 the HBA was amended to introduce section 32(1A).This section sets out that the Respondent must not approve the issue of an owner [NAME] permit on a dual occupancy unless there are special circumstances. The section also provides that the Respondent may issue guidelines to define special circumstances. Guidelines have not been issued.

3. The Internal Reviewer was not satisfied that special circumstances existed to justify issuing the Applicant an owner [NAME] permit to do residential building work that relates to a dual occupancy due to financial or other hardship. The Respondent's internal review decision dated 23rd of September 2015 was based on the conclusion that no evidence had been provided by the Applicant that the Applicant would be financially unable to contract a [NAME] to construct a single storey dwelling to create the dual occupancy. There had been no evidence that the Applicant had experienced a significant change in circumstances that would prevent the Applicant from engaging a [NAME] to construct the dwelling.

Relevant Legislation 1. Section 32 of the HBA sets out the authorities conferred on the holder of a permit by the issue of an owner [NAME] permit. The default position is that owner [NAME] permits may not be issued in relation to a dual occupancy. An owner-[NAME] permit for the purposes of a dual occupancy may be issued in "special circumstances". Section 32 HBA Authority conferred by owner-[NAME] permits (1) An owner-[NAME] permit authorises its holder to do such residential building work as is described in the permit on the land specified in the permit. (1A) An owner-[NAME] permit must not be issued to authorise its holder to do residential building work that relates to a dual occupancy unless the Secretary is satisfied that special circumstances exist that justify the owner-[NAME] permit authorising its holder to do that work. The Secretary may issue guidelines as to the circumstances that will be considered to be special circumstances for the purposes of this subsection. (2) The authority conferred by an owner-[NAME] permit: (a) is subject to the conditions applicable to the permit for the time being, and (b) may, on the application of the holder of the permit, be varied by an order of the Secretary set out in a notice served on the holder of the permit. Section 29 HBA Definitions (1) In this Act: "dual occupancy" and "secondary dwelling" have the same meanings as in the principal local environmental planning instrument prescribed by the Standard Instrument (Local Environmental Plans) Order 2006. "owner-[NAME] work" means residential building work: (a) the reasonable market cost of the labour and materials involved in which exceeds the prescribed amount, and (b) that relates to a single dwelling-house, dual occupancy or secondary dwelling: (i) that may not be carried out on the land concerned except with development consent under Part 4 of the Environmental Planning and Assessment Act 1979 , or (ii) that is complying development within the meaning of that Act. (2) If land is owned by a company that is wholly owned by individuals, the land is to be taken (for the purposes of this Division) to be owned by those individuals. (3) In this Division, a reference to an owner of land includes a reference to a person who has a prescribed interest in the land.

1. The Standard Instrument (Local Environmental Plans) Order 2006 defines dual occupancy and dwelling as follows: 2. "dual occupancy means 2 dwellings (whether attached or detached) on one lot of land; and 3. "dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile."

The Application for an owner-[NAME] permit 6 July 2015 1. [NAME]'s description of work in his application for the owner-[NAME] permit was "the construction of a single storey dwelling to create a dual occupancy and the temporary use of existing outbuilding as residential accommodation." He ticked the boxes that stated that he intended to permanently reside at the address upon completion of the building work and that he was applying for an owner [NAME] permit that authorises the construction or alterations and additions to dual occupancy (that is not a secondary dwelling). 2. [NAME] attached a statement to his application setting out the special circumstances justifying the issue of an owner [NAME] permit. Since he had lodged his development application with Liverpool Council, the law had changed in January 2015 in relation to the issuing of owner [NAME] permits for dual occupancy. Had he known that the law would be changed he would have reduced the size of the design submitted in the [NAME] and used a reputable [NAME] such as [COMPANY]. The estimated cost of the project is approximately $36,200 on the basis that it was constructed with an owner [NAME] permit. The cost of construction of the [NAME] approved design would be magnified if a [NAME] were engaged. In this case [NAME] would not be able to afford to pursue the construction of his dream home. [NAME] then quoted from the [NAME] by the Minister for Fair Trading on 27th of May 2014, introducing changes to owner [NAME] permits. The parliamentary intention for the amendment was to limit owner builders using an owner [NAME] permit for commercial reasons such as for investment purposes. [NAME] reiterated that it was his intention to build his dream home and not with a view to subdivide the land or otherwise sell for a profit. He said it was unlikely that a larger lot such as the 5 acres at [ADDRESS] would be subdivided at the registered proprietor's own behest. This was usually done by a developer.

3. The home had been designed as [NAME]'s dream home in retirement and was a single storey with ducted vacuum cleaning to assist their lifestyle as they aged. 4. [NAME] stated that the existing dwelling on the premises is a 1950s fibro cottage. It is proposed that my eldest son will reside in the existing premises after completion of the new dwelling. My son will assist with the management of the property and our immediate care. It is our culture that upon reaching old age that the children take responsibility to care for and assist their parents. 5. [NAME] noted that he was in no funds to proceed with the whole construction of the building. The plan was to build a home in several stages as funds become available. A [NAME] would insist the project be completed within a set period of time. The engagement of a [NAME] could cause family hardship and place a heavy burden on [NAME] and his family. The timeline of 34 months had been prepared for building in stages. If he were not granted an owner [NAME] licence he would not proceed with the project as he would not be able to outlay large costs to engage a [NAME] at the outset.

Respondent's reasons for refusal of owner [NAME] permit

Initial decision 13 July 2015 1. The Respondent stated in its letter of 13 July 2015 that as the application and approved building work was in respect of a dual occupancy the application for owner [NAME] permit must be refused. The application had not demonstrated special circumstances that justified that an owner [NAME] permit is required to construct the dual occupancy.

2. In determining if special circumstances exist, consideration is given to whether the work is on an existing dual occupancy, the Applicant's specific circumstances demonstrate a compelling reason for the dual occupancy and whether the development is considered to be a secondary dwelling.

3. It is noted there is temporary outbuilding being used as residential accommodation during construction. Clause 64 of the development application requires the demolition/ conversion of the existing dwelling highlighted on the plan prior to an occupation certificate being issued. However there is no proven intention or timeframes indicating the removal/conversion of this dwelling in your application. Accordingly the application is refused in accordance with section 32(1A) of the Home Building Act 1989.

[NAME]'s application for internal review

Application for internal review 1. [NAME] lodged an application for internal review dated 3 August 2015.

2. The application for internal review referred to the following factors: * that the [NAME] had a positive obligation in protecting and promoting the interests of owners of dwellings; * in considering special circumstances the decision maker's reliance on a temporary outbuilding being used as residential accommodation during construction was an irrelevant consideration; * no guidelines had been issued by the [NAME] as to what constitutes special circumstances; * the decision maker has a broad discretion and should have consulted the Minister's [NAME] speech in relation to owner builders of the 27th of May 2014. [NAME] emphasised that it was not his intention to use the owner [NAME] permit for commercial or investment purposes. The intention was to build his dream home that he would live in during retirement. The home had been designed for this purpose. * Following completion of the new dwelling his eldest son would reside in the existing fibro cottage and care for the property and, as [NAME]'s culture required – his parents. 1. [NAME] referred to an example of special circumstances given in the [NAME] speech "where the refusal of an owner [NAME] permit would cause family hardship." [NAME] said that he was currently in no funds to proceed with the whole construction of the building. The plan was to build a home in several stages as funds become available. This would not be possible if a [NAME] were engaged as the building would have to be completed within a set period of time and payments made. The engagement of the [NAME] would cause "family hardship" as referred to in the [NAME] speech. Further the time lapsed construction period of 34 months was only a minimum and this supported the fact that the building was being constructed for legitimate non-commercial reasons.

2. In any event, the examples given in the [NAME] were not exhaustive of what might constitute special circumstances. 3. [NAME] submitted that the decision maker had failed to consider the unique circumstances of his case and the impact of the [NAME]. 4. [NAME] submitted that the decision maker had acted unreasonably and had taken into account irrelevant considerations. Further the statement that there was no proven intention or timeframes indicating the removal/conversion of the existing dwelling had not taken into account that it was a condition of the development application that the outbuilding be demolished or converted prior to the issue of the occupation certificate under section 109M(1) of the Environmental Planning and Assessment Act 1979. [NAME] noted that the decision maker, [NAME] had told [NAME] that the owner [NAME] permit should be refused because there will be three premises on the property. This was incorrect. The outbuilding is a farm shed. It was proposed that the farm shed be used by the contractor builders during their lunch breaks and resting periods. The outbuilding will also include toilet facilities, disposal methods and build storage facilities, so as to satisfy the requirements of the development application. Liverpool City Council had approved the development application to create a dual occupancy and the temporary use of an outbuilding. On this basis, [NAME] submitted that the decision maker's reasons for refusing his application had taken into account irrelevant considerations and was unreasonable in the circumstances.

The Respondent's reasons on internal review for its decision to refuse to grant the owner [NAME] permit 1. The Respondent set out its reasons on internal review for refusing the application for the owner [NAME] permit in a letter dated 23rd September 2015. In summary the Respondent's reasons for refusal were as follows.

2. The internal reviewer was not satisfied that special circumstances existed due to financial or other hardship to justify issuing the Applicant an owner [NAME] permit to do residential building work that relates to a dual occupancy. The Respondent referred to the fact that the Applicant had advised in a letter dated 3 August 2015 that the construction of the dwelling at [ADDRESS] would be in six separate stages with a minimum period of time of 36 months so as not to place a heavy burden on the family as the engagement of the [NAME] would cause family hardship. The Respondent considered that this information was inconsistent with the development application lodged with Liverpool Council in which the Applicant had stated that the Applicant was not applying for development consent in stages.

3. The Respondent also noted that approval had been given to [NAME] on the 27th of May 2015 for the construction of six greenhouses at the [ADDRESS] property. The Respondent considered that this conflicting information did not support that the Applicant would experience hardship if an owner [NAME] permit was not issued to the Applicant. The Respondent also referred to the fact that the fibro dwelling at [ADDRESS] is presently being rented out, as evidence that it was operating as a commercial activity. This evidence did not support that the Applicant would experience financial hardship if the owner [NAME] permit was not issued.

4. The fact that the Applicant lived in a separate property at [ADDRESS] also did not support that the Applicant would experience hardship financial or otherwise if an owner [NAME] permit was not issued. The Respondent concluded that there was no evidence provided by the Applicant that the Applicant would be financially unable to contract a [NAME] to construct a single storey dwelling to create a dual occupancy. Further there was no evidence that the Applicant has experienced a significant change in circumstances that would prevent the Applicant from engaging a [NAME] to construct the dwelling. The fact that the Applicant had submitted conflicting information was relevant to considering the application in its entirety. The Applicant had had opportunities to submit all available and relevant information.

The Hearing 1. The hearing was held on 3 February 2016. The Tribunal has jurisdiction to review the decision pursuant to section 83B of the HBA and section 30 of the Civil and Administrative Tribunal Act 2013 (NSW). The role of the Tribunal is to make the correct and preferable decision on the material before it.

2. The Tribunal can take into account both the material before the original decision maker as well as any new material put before the Tribunal. [NAME] v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77.

3. The standard of proof that applies in these proceedings is set out in section 140 of the Evidence Act 1995 NSW as "on the balance of probabilities." 140 Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged.

Documents before the Tribunal 1. The Tribunal had the following documents before it: * the Applicant's application for review * The Respondent's section 58 documents * affidavit of [NAME] dated 19th of January 2016 * affidavit of [NAME] * affidavit of [NAME] * the Applicant's folder of documents * the Applicant's folder of cases * Company details 29th of January 2016 * [NAME] speeches 6 May 2014 and 27 May 2014 1. [NAME] gave evidence before the Tribunal.

The Applicant's case in the Tribunal 1. In support of his application [NAME] provided affidavits from * Himself; * [NAME]; and * [NAME], Architect and * An outline of Submissions

Affidavit of [NAME] 19 January 2016 1. [NAME]'s affidavit dated 19th of January 2016 noted that he and his wife presently live in [ADDRESS] on a property from which he currently also engages in his accounting and tax agent practice. [NAME] had previously obtained an owner [NAME] permit for the [ADDRESS] property to build a new dwelling on the property into which he and his family had moved.

2. His intention is to expand the current practice from a small portion of the dwelling to the entire dwelling at [ADDRESS]. This led to the purchase of the property at [ADDRESS], Rossmore subject of the owner [NAME] application. He plans to build a dream home on the new property at [ADDRESS] for his and his wife's retirement and their old age. The property at [ADDRESS] has a 1950s cottage and a farm shed behind the cottage. The cottage is currently being rented to a non-family member. It is proposed that following completion of the new dwelling, the tenants of the current cottage will vacate for [NAME]'s eldest son to reside in the cottage. 3. [NAME] lodged a development application on 16 September 2014. He obtained consent on 28 May 2015 to construct a single storey dwelling. He proposes to build the new dwelling in intervals, spanning at least 34 months to enable the financing of the new dwelling. 4. [NAME] has completed owner [NAME] qualifications.

5. Approximately 80% of the land at [ADDRESS] is subject to a commercial lease with [COMPANY]. [COMPANY] uses the farm shed for the purposes of primary production. [NAME] recently obtained development approval to construct greenhouses for the purposes of horticulture on the property 6. [NAME]'s affidavit stated the farm shed has been converted into a caretaker's residence during the construction of the new second dwelling. The development approval requires that the outbuilding be demolished or converted to its original state prior to obtaining an occupation certificate 7. The section 32(1A) of the HBA which limited the issue of owner [NAME] permits in respect of dual occupancy buildings came into effect on 15th of January 2015 after [NAME] had had an architect complete a floor plan for the proposed one storey dwelling lodged with Liverpool Council. He would have reduced the size of the building so that it would have been economical to have engaged a [NAME] had he been aware of the new provisions. If he had intended that the dwelling be a commercial construction he would have used an off the shelf layout system from a [NAME] such as [COMPANY] without the addition of expensive finishing.

[NAME]'s oral evidence 1. In his oral evidence [NAME] told the Tribunal that he currently rents out the property at [ADDRESS] - $500 a week for the fibro house and $500 a week to [NAME]. This rent just covers the mortgage on the property. 2. [NAME] told the Tribunal that he doesn't know what it would cost to have a [NAME] to build the proposed dwelling in the conventional way. He has previously built under an owner [NAME] permit.

Submissions of the Applicant

Application for review before the Tribunal 1. The Applicant noted that the Respondent had not issued guidelines to assist the Applicant in identifying applicable special circumstances, nor to assess the merit of an Applicant's application for an owner [NAME] permit. The Applicant stated that the Respondent had failed to consider and apply the Parliamentary intention of the introduction of section 32(1A) of the HBA. The balance of the Applicant's grounds were cast as the Respondent taking into account irrelevant considerations in determining whether family hardship existed and failure to consider relevant considerations; inflexible application of a rule or policy under section 32 (1A) of the HBA. The decision was so unreasonable that no reasonable decision maker could have issued the initial refusal and internal review decision.

2. The Applicant stated that any decision about the Applicant's application for an owner [NAME] permit must uphold the purposes of the Home Building Act 1989. There are no special circumstances guidelines at present. Therefore special circumstances should take its ordinary meaning. The [NAME] stated that the purpose of the amendments was to stop people making money out of dual occupancy. There was a non-exhaustive list of factors quoted in the [NAME] - including where there was legitimate non-commercial work and where there was family hardship. The Applicants submitted that it would cause financial hardship to the family if they were to build without an owner [NAME] permit. The mortgage would be increased substantially to pay for the increased cost of the [NAME]. Further the Respondent's reference to the timing of the demolition of the temporary building was not relevant. The development application required that the temporary building be either demolished or returned to its original use prior to an occupation certificate being issued for the new dwelling. This was sufficient guarantee. The legislation intended to catch those who were making commercial gain through the issue of an owner [NAME] permit. This was not the case for the Applicant.

Respondent's submissions 1. The Respondent submitted that the Applicant's evidence showed that the primary focus of the building at [ADDRESS] was to enable the Applicant to expand the Applicant's tax business at [ADDRESS]. Therefore it was not the case that the construction was entirely for non-commercial reasons. The Applicant had not provided specific evidence of family hardship. There had been no evidence of the relative costs of the owner [NAME] construction, as opposed to construction by the [NAME] under contract.

2. While the Applicant had stated that they proposed the new dwelling at [ADDRESS] as a retirement home - there was no retirement proposal or plan that had been put before the Tribunal. The Respondent submitted that it was not a special circumstance that the [NAME]'s eldest son would reside in the present fibro cottage at [ADDRESS] in order to take care of his parents. It was the preference of the Applicant to do things in a certain way. It was quite legitimate for the Applicant to expand his business and to arrange his affairs as the Applicant thought fit. This, however, did not constitute special circumstances for the purposes of the grant of an owner [NAME] permit.

Tribunal's consideration

Findings of Fact 1. The Tribunal understands that the property at [ADDRESS] is owned by the [COMPANY] as Trustee for the [COMPANY]. [NAME] and [NAME] are the Directors and Shareholders of the Trustee Company. In these circumstances, the Tribunal accepts that [NAME] are the real owners of the property, when the "corporate veil" is lifted.

2. The Tribunal also notes that 80% of the property at [ADDRESS] is currently subject to a lease to [COMPANY] and that the land use under the lease is for primary production. The Tribunal understands this is permitted by Liverpool Council.

3. The Tribunal understands that in May 2015 an application was submitted by [NAME] for the construction of six greenhouses on the property at [ADDRESS].

4. The Tribunal also understands that the 1950s dwelling currently on the property at [ADDRESS] is rented out to a non-family member. There is no evidence before the Tribunal as to the cost of the mortgage on the [ADDRESS] property or the relationship between the mortgage and the rental returns from the cottage and the lease to [NAME]. [NAME] told the Tribunal that the rent just covers it.

5. The Tribunal understands that the plans to create a dual occupancy at [ADDRESS] were subject of a Development Application ([NAME]) lodged on 16 September 2014. This lodgement was prior to the amendments to the HBA. The new provisions permit the issue of an owner-[NAME] permit to create a dual occupancy, only in special circumstances. The [NAME] to create the dual occupancy was approved by Liverpool Council in May 2015 – after the amendments. [NAME] could not have known of the new provisions at the time of lodging the [NAME].

6. The Tribunal accepts the Applicant's evidence that he proposes to expand his business at his current residence at [ADDRESS] and that as part of this plan he has purchased the site at [ADDRESS] with the intention of building a home designed for retirement. The Tribunal also accepts that it is the Applicant's proposal that the Applicant's eldest son live in the current dwelling in the fibro cottage at [ADDRESS] in order to take care of his parents.

7. The Tribunal accepts that it is [NAME]'s intention to construct the dwelling in stages for financial reasons. The Respondent referred in its decision-making to the fact that the Applicant responded "No" to the question in the [NAME] form "Are you applying for development consent in stages?" The Respondent considered that this contradicted the Applicant's contention that he wished to construct the new dwelling in stages. The Tribunal is satisfied that the question in the [NAME] refers to the necessity to obtain development approval at each stage of a staged development and that this is not the case in relation to [NAME]'s application. The term "staged development" has been used to mean different things by the Applicant and the Respondent.

8. The Tribunal accepts the evidence of the Applicant's wife [NAME] contained in her affidavit and that of the architect engaged by the Applicant, [NAME] that the home was designed as a home suitable for the Applicant's retirement and to be built in stages.

9. The Tribunal understands that the Applicant [NAME] does not presently live at [ADDRESS]. [NAME] resides at 145 [ADDRESS] [POSTCODE]. [NAME] ticked the relevant box on the owner-[NAME] permit application form indicating that it is his intention to reside in the property after completion.

10. The Tribunal accepts that it is [NAME]'s current intention to move into the dwelling to be created at [ADDRESS] as a retirement home.

11. The Tribunal understands that there are presently two buildings on the 5 acre property. One is a 1950s fibro cottage which is rented out to a third party. There is also an outbuilding on the property. The Tribunal understands that the terms of the development application approval are that this should serve as an amenities building for the contractors who are building the new dwelling. It is a condition of the development application approval that prior to obtaining the occupation certificate to enable occupation of the new home, that the outbuilding be converted or demolished. The Tribunal has no reason to consider that the Applicant will not comply with the conditions of the [NAME].

12. The Tribunal accepts [NAME]'s submission that he does not presently intend to subdivide the land at [ADDRESS]. This was not contradicted by the Respondent.

Findings of law 1. Both party's cases were put on the basis that the owner [NAME] permit was for the purpose of creating a dual occupancy.

2. The Tribunal is satisfied that by building the new home subject of the owner [NAME] permit, [NAME] intended to create a dual occupancy, with the existing 1950s fibro cottage a separate dwelling.

3. In these circumstances [NAME] is not entitled to an owner-[NAME] permit and must demonstrate special circumstances.

Special Circumstances 1. There are no guidelines issued as to the definition of special circumstances in the HBA context. The Tribunal refers to a number of factors in interpreting the meaning of special circumstances: * An understanding of the term "special circumstances" generally; * the purposes of the Home Building Act 1989; * the purposes of an owner-[NAME] permit in the context of the HBA; * the legislative purpose behind the amendment to the HBA in section 32(1A) against the issue of owner [NAME] permits for dual occupancies; * the scope of special circumstances as set out in the Minister's [NAME] in May 2014; and * the Applicant's claim for special circumstances in the context of the permit sought.

Meaning of special circumstances 1. A scan of case law shows that the concept of 'special circumstances" is known in the areas of criminal law, professional disciplinary matters in relation to costs, applications for security of costs and in the social security arena concerning beneficial exercise of a discretion.

2. In [NAME]'s case, the AAT considered the meaning of the term "special circumstances" in relation to its use in section 1184K of the Social Security Act. Section 1184 allowed for the Secretary of the Department of Social Security to exercise a beneficial discretion "if it is appropriate to do so in the special circumstances of the case." Relying on a Full Federal Court decision in [NAME] v Director General of Social Security [1984] AATA 176, the AAT considered that if something unfair, unintended or unjust had occurred which was out of the ordinary, (this Tribunal's bolding) this might constitute special circumstances justifying the exercise of the discretion – see [NAME], Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 99 paragraphs 21 and 38-40.

3. The AAT's analysis in [NAME]'s case also indicates that the determination of the existence of "special circumstances" vested a broad discretion in the decision maker.

Purposes of the Home Building Act 1989 1. The overall purpose of the HBA is to protect consumers in the contracting for and the construction of residential buildings. Davie describes an owner-[NAME] in the context of the HBA as "someone who intends to build a dwelling on his or her own land and live in it." (See Davie, T : The Annotated Home Building Act 1989 NSW; 2000 at p17)

2. Prior to the section 32(1A) amendment, generally speaking, it appears an owner-[NAME] permit was not granted unless the dwelling built was to be occupied by the Applicant.

3. The [NAME] introducing the amendment against dual occupancy states that: "The owner [NAME] provisions are being reformed to help ensure that the permit system is not being used inappropriately for commercial reasons as a means of circumventing the licensing requirements." AND "There are concerns that some commercially orientated, unlicensed people may be using the permit system in order to undertake dual occupancy work on land with a view to subdividing the land and on selling it at a profit. The owner [NAME] permit system is not intended for such commercial development work."

1. The Tribunal understands this to mean that the amendment is aimed at avoiding the use of owner-[NAME] permits to create a dual occupancy for commercial purposes such as immediate on selling or subdivision for financial advantage.

2. In this context the [NAME] then refers to special circumstances as follows: "special circumstances exist, such as where a family could demonstrate legitimate non-commercial reasons for the work or where refusing the permit could cause family hardship. "

1. The Tribunal is satisfied that the reasons advanced by the Applicant for the work are to build a home on the property suitable for mobility in old age, near an existing property which is to be occupied by a family member with the responsibility of taking care of [NAME] in their older age. The Tribunal does not consider this to be a commercial motivation. There is no immediate intention to sub-divide established in the Applicant's evidence.

2. The Tribunal understands the alternative to [NAME] obtaining an owner [NAME] permit is to engage the holder of a building contractor licence to undertake the residential building work. [NAME] would not be prevented from constructing the dual occupancy by refusal of the owner-[NAME] permit. However the Tribunal understands that [NAME]'s special circumstances are that he could not afford to build the home as per the approved Development Application by using a contractor [NAME]. The [NAME] and plans were drafted and submitted prior to the change in section 32(1A). In this respect [NAME] advances special circumstances very specific to his own situation. 3. [NAME] did not provide calculations of the relative costs of building as an owner [NAME] and those of engaging a [NAME] contractor. The Tribunal understands, and this was not contradicted by the Respondent, that the [NAME] approved home which was architect designed, would be more expensive to build under a standard building contract than by an owner [NAME]. Further, payment could not be staggered over the proposed minimum 34 months if the project were undertaken by a contracted [NAME]. [NAME]'s evidence to the Tribunal was that this would cause financial hardship because the mortgage and mortgage payments would need to be increased to pay a [NAME] contractor or at worst he would be unable to finance the building at all.

4. The Tribunal accepts that the purpose of seeking the owner [NAME] permit is not for commercial purposes with a view to subdividing the land and on selling it at a profit, as set out in the Minister's [NAME] speech explaining the purposes of the amendment. Further the Tribunal accepts that it would cause family hardship were [NAME] not able to proceed with the staged construction plan - either because he could not proceed with the plan as approved by Liverpool Council or because it would cause financial hardship to the Applicant and the [NAME] family to engage a [NAME] to undertake the construction.

5. The Tribunal is satisfied that in the absence of specific guidelines as to what might constitute special circumstances it should consider the contents of the [NAME] speech relating to the amendments to the HBA, the objects of the HBA and the specific circumstances of the applicant [NAME]. The Tribunal is satisfied on the evidence before it that there are special circumstances set out by [NAME]. The refusal of the owner [NAME] permit will cause financial hardship to [NAME]'s family in that he will either not be able to proceed with the development or he must proceed with the increased costs and pace of a contracted [NAME].

6. The Tribunal is satisfied that [NAME] has advanced special circumstances. The Tribunal is satisfied that the Respondent's decision should be set aside and that the applicant should be granted an owner [NAME] permit. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 May 2016