Burwood Council v Pan Pac Investments Pty Ltd [2018] NSWLEC 110 | Case summary

Burwood Council v Pan Pac Investments Pty Ltd [2018] NSWLEC 110 | Case summary | Zoe

[3]

Environmental Planning and Assessment Act 1979

The EPA Act has been rearranged and renumbered effective on and from 1 March 2018. It is appropriate to refer (as the three charges do) to the version which applied prior to the 1 March 2018 changes.
Relevant sections of the EPA Act include: Part 6 Implementation and enforcement … Division 1C Investigative powers … Subdivision 3 Powers to obtain information 119J Requirement to provide information and records (1) An investigation officer may, by notice in writing given to a person, require the person to furnish to the officer such information or records (or both) as the notice requires in connection with an investigation purpose. (2) The notice must specify the manner in which information or records are required to be furnished and a reasonable time by which the information or records are required to be furnished. (3) The notice may only require a person to furnish existing records that are in the person's possession or that are within the person's power to obtain lawfully. (4) The person to whom any record is furnished under this section may take copies of it. (5) If any record required to be furnished is in electronic, mechanical or other form, the notice requires the record to be furnished in written form, unless the notice otherwise provides. (6) An investigation officer may exercise a power under this section whether or not a power of entry is being or has been exercised. … Subdivision 4 Miscellaneous provisions applying to exercise of powers … 119M Offences (1) A person must not, without reasonable excuse, fail to comply with a requirement made of the person by an investigation officer in accordance with this Division. (2) A person must not furnish any information or do any other thing in purported compliance with a requirement made under this Division that the person knows is false or misleading in a material respect. (3) A person must not intentionally delay or obstruct an investigation officer in the exercise of the officer's powers under this Division. (4) The maximum penalty for an offence under section 125 arising under this section is a tier 3 maximum penalty. … Division 2A Orders … 121B orders that may be given by consent authority or by Minister etc (1) An order may be given to a person by: ... (a) a council, or … to do or to refrain from doing a thing specified in the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table. Column 1 Column 2 Column 3 To do what? In what circumstances? To whom? 1 To cease using premises for a purpose specified in the order … Owner of premises, or person by whom premises are being used for the purpose specified in the order (b) Premises are being used for a purpose for which development consent is required but has not been obtained … … … … The use of the building: 9 To cease the use of a building (a) is not consistent with its classification under this Act or the Local Government Act 1993, and The owner or occupier of the building … … 12 To do such things as are specified in the order to restore premises to the condition in which they were before building was unlawfully erected or before work was unlawfully carried out … The owner of the premises, any person entitled to act on a development consent or complying development certificate or any person acting otherwise than in compliance with a development consent or complying development certificate (b) Work has been unlawfully carried out

[4]

… 121H Notice to be given of proposed order (1) Notice to whom the order is to be given Before giving an order, the person who gives the order must give notice to the person to whom the order is proposed to be given of the intention to give the order, the terms of the proposed order and the period proposed to be specified as the period within which the order is to be complied with. (2) The notice must also indicate that the person to whom the order is proposed to be given may make representations to the person who gives the order as to why the order should not be given or as to the terms of or period for compliance with the order. (3) The notice may provide that the representations are to be made to the person who gives the order or a nominated person on a nominated date, being a date that is reasonable in the circumstances of the case. In the case of a council this may be a specified committee of the council on a specified meeting date or to a specified employee of the council on or before a specified date. … Division 4 Offences 125 Offences against this Act and the regulations (1) Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Secretary, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act. … (4) It is a sufficient defence to a prosecution for an offence that arises from the failure to comply with an order under Division 2A if the defendant satisfies the court that the defendant was unaware of the fact that the matter in respect of which the offence arose was the subject of an order. (5) Unless the context otherwise requires, a requirement under this Act or the regulations that must be complied with by a particular time, or within a particular period, continues after the time has expired or the period ended, and so must still be complied with.

The limitation period for bringing proceedings for an offence under the EPA Act is two years after the offence is alleged to have been committed (s 127(5)).

[5]

Burwood Local Environmental Plan 2012

The relevant zoning provision for the Property in the Burwood Local Environmental Plan 2012 (BLEP) is: Land Use Table … Zone R3 Medium Density Residential 1 Objectives of zone • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. 2 Permitted without consent Home occupations; Roads 3 Permitted with consent Attached dwellings; Boarding houses; Building identification signs; Business identification signs; Centre-based child care facilities; Community facilities; Dual occupancies; Dwelling houses; Group homes; Home industries; Multi dwelling housing; Neighbourhood shops; Places of public worship; Respite day care centres; Semi-detached dwellings; Seniors housing; Shop top housing; Any other development not specified in item 2 or 4 4 Prohibited Advertising structures; Agriculture; Air transport facilities; Airstrips; Amusement centres; Animal boarding or training establishments; Biosolids treatment facilities; Boat building and repair facilities; Boat launching ramps; Boat sheds; Camping grounds; Car parks; Caravan parks; Cemeteries; Charter and tourism boating facilities; Commercial premises; Correctional centres; Crematoria; Depots; Eco-tourist facilities; Electricity generating works; Entertainment facilities; Environmental facilities; Environmental protection works; Exhibition villages; Extractive industries; Farm buildings; Forestry; Freight transport facilities; Function centres; Heavy industrial storage establishments; Helipads; Highway service centres; Home occupations (sex services); Industrial retail outlets; Industrial training facilities; Industries; Information and education facilities; Jetties; Marinas; Mooring pens; Moorings; Mortuaries; Open cut mining; Passenger transport facilities; Public administration buildings; Recreation facilities (indoor); Recreation facilities (major); Recreation facilities (outdoor); Registered clubs; Research stations; Residential accommodation; Restricted premises; Rural industries; Service stations; Sewage treatment plants; Sex services premises; Storage premises; Tourist and visitor accommodation; Transport depots; Truck depots; Vehicle body repair workshops; Vehicle repair stations; Veterinary hospitals; Warehouse or distribution centres; Waste or resource management facilities; Water recreation structures; Water recycling facilities; Water storage facilities; Water treatment facilities; Wharf or boating facilities; Wholesale supplies
The BLEP includes the following definitions: Dictionary … boarding house means a building that: (a) is wholly or partly let in lodgings, and (b) provides lodgers with a principal place of residence for 3 months or more, and (c) may have shared facilities, such as a communal living room, bathroom, kitchen or laundry, and (d) has rooms, some or all of which may have private kitchen and bathroom facilities, that accommodate one or more lodgers, but does not include backpackers' accommodation, a group home, hotel or motel accommodation, seniors housing or a serviced apartment. … group home means a permanent group home or a transitional group home. … group home (permanent) or permanent group home means a dwelling: (a) that is occupied by persons as a single household with or without paid supervision or care and whether or not those persons are related or payment for board and lodging is required, and (b) that is used to provide permanent household accommodation for people with a disability or people who are socially disadvantaged, but does not include development to which State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 applies. … group home (transitional) or transitional group home means a dwelling: (a) that is occupied by persons as a single household with or without paid supervision or care and whether or not those persons are related or payment for board and lodging is required, and (b) that is used to provide temporary accommodation for the relief or rehabilitation of people with a disability or for drug or alcohol rehabilitation purposes, or that is used to provide half-way accommodation for persons formerly living in institutions or temporary accommodation comprising refuges for men, women or young people, but does not include development to which State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 applies. … residential accommodation means a building or place used predominantly as a place of residence, and includes any of the following: (a) attached dwellings, (b) boarding houses, (c) dual occupancies, (d) dwelling houses, (e) group homes, (f) hostels, (g) multi dwelling housing, (h) residential flat buildings, (i) rural workers' dwellings, (j) secondary dwellings, (k) semi-detached dwellings, (l) seniors housing, (m) shop top housing, … residential care facility means accommodation for seniors or people with a disability that includes: (a) meals and cleaning services, and (b) personal care or nursing care, or both, and (c) appropriate staffing, furniture, furnishings and equipment for the provision of that accommodation and care, but does not include a dwelling, hostel, hospital or psychiatric facility. …

[6]

Boarding Houses Act 2012

Section 5 of the Boarding Houses Act 2012 provides: Part 1 Preliminary … 5 Meaning of "registrable boarding house" (1) For the purposes of this Act, a registrable boarding house means any of the following: (a) a general boarding house, (b) an assisted boarding house that is required to be authorised under Part 4 for it to be lawfully used as such under that Part (a regulated assisted boarding house). (2) Boarding premises are a general boarding house if the premises provide beds, for a fee or reward, for use by 5 or more residents (not counting any residents who are proprietors or managers of the premises or relatives of the proprietors or managers). … 37 Meaning of "an assisted boarding house"(cf YCS Act, s 3) (1) For the purposes of this Act, an assisted boarding house means any of the following: (a) boarding premises that provide beds, for a fee or reward, for use by 2 or more residents who are persons with additional needs (not counting any persons with additional needs who reside there with their competent relatives), (b) boarding premises that are declared to be an assisted boarding house by a notice in force under section 39. (2) However, an assisted boarding house does not include any of the following: (a) premises that are used as a hotel, motel or bed and breakfast accommodation, (b) premises that are used as a backpackers hostel, (c) a serviced apartment (being a building or part of a building that is used to provide self-contained tourist or visitor accommodation that is regularly cleaned by or on behalf of the proprietor or manager), (d) premises that are used to provide accommodation for workers or employees in connection with their work or employment, (e) a government school or registered non-government school within the meaning of the Education Act 1990 or any other premises that are used by an educational body to provide accommodation for its students, (f) a private health facility licensed under the Private Health Facilities Act 2007, (g) a nursing home within the meaning of the Public Health Act 2010, (h) a mental health facility within the meaning of the Mental Health Act 2007, (i) a public hospital within the meaning of the Health Services Act 1997, (j) a residential care facility under the Aged Care Act 1997 of the Commonwealth operated by an approved provider under that Act, (k) a retirement village under the Retirement Villages Act 1999, (l) premises that are the subject of a residential tenancy agreement to which the Residential Parks Act 1998 applies, (m) premises that are the subject of an occupation agreement to which the Holiday Parks (Long-term Casual Occupation) Act 2002 applies, (n) social housing premises within the meaning of Part 7 of the Residential Tenancies Act 2010, (o) premises used for refuge or crisis accommodation, or accommodation for persons with additional needs, that is provided by a public authority, council or any other body or organisation and that is wholly or partly funded by the Commonwealth or the State (or an agency of the Commonwealth or the State), (o1) without limiting paragraph (o), premises used for accommodation that is provided by a registered provider of specialist disability accommodation for the purposes of the National Disability Insurance Scheme Act 2013 of the Commonwealth, (p) premises or a part of premises that are exempted from the operation of this Part by an exemption notice in force under section 40, (q) premises (or premises of a kind) prescribed by the regulations.

[9]

Affidavit of Mr Ellis

The Council read the affidavit of Mr Ellis law enforcement officer with the Council sworn 10 January 2017. The exhibits to Mr Ellis' affidavit (Exhibit A) included: 1. a printout of the Council's property system showing the ratepayer of the Property as Pan Pac; 2. a Land and Property Information (LPI) street address check for the Property; 3. an LPI title search for Lot 1 in DP 85957 showing Pan Pac as the registered proprietor; 4. an Australian Securities and Investments Commission (ASIC) current organisation extract showing Ms Wu as the sole director of Pan Pac and the registered office being 1/1 Pilgrim Avenue Strathfield; 5. an LPI street address check and title search for 1/1 Pilgrim Avenue Strathfield showing Yan Wu as the registered proprietor; 6. a copy of the Council's land use map showing the Property as being zoned R3 Medium Density Residential; 7. a copy of the record of the complaint made on 6 January 2016 that the Property was being used as a boarding house; 8. two photographs of the plasterboard wall taken by Mr Ellis during the inspection of the Property on 29 January 2016; 9. a copy of the approved plans for the Property dated May 1977; 10. a copy of the Notice of Proposed Order (NPO) issued to Pan Pac on 24 February 2016; 11. a letter from Ms Wu on behalf of Pan Pac dated 14 March 2016 responding to the NPO; 12. a copy of the Order issued to Pan Pac on 22 March 2016; 13. a copy of the letter extending the time to comply with the Order dated 21 July 2016; 14. a CD containing the audio and video recording of Ms Wu's first record of interview (ROI) dated 31 August 2016; 15. a letter from Ms Wu dated 31 August 2016 which was given to the Council during the ROI on 31 August 2016; 16. a CD containing the audio and video recording of Ms Wu's second ROI dated 15 December 2016; and 17. a copy of the Notice issued to Pan Pac on 14 November 2016.
Mr Ellis' duties included enforcing legislation and subordinate legislation relevant to the functioning of the Council. This involved assessing whether land was being used in accordance with the BLEP. Mr Ellis' job description as a law enforcement officer was tendered (Exhibit C).
The Property is located on land zoned R3 Medium Density Residential as shown on the land use map exhibited to Mr Ellis' affidavit. On 6 January 2016 the Council received an oral complaint that the Property was being used as a boarding house.
On 29 January 2016 Mr Ellis and Mr Trinh compliance co-ordinator with the Council inspected the Property. Mr Ellis had sent letters to the land owner of the Property advising that the Council would be conducting an inspection. Mr Ellis had a conversation with a resident of the Property who said that the owner was not present. Mr Ellis observed that an archway between the lounge room and the dining room had been boarded up and sealed with plasterboard. Mr Ellis took two photographs of the plasterboard wall.
Some of the internal doors at the Property had key locked door handles. While Mr Ellis and Mr Trinh were inspecting the Property the resident who had initially met them had a telephone conversation that was not in English. Shortly after Ms Wu who Mr Ellis believed to be the owner of the Property arrived. Mr Ellis had a conversation with Ms Wu about using the Property as a boarding house and the plasterboard wall. Ms Wu said she had temporarily sealed the archway soon after she purchased the Property in 2007. She did not live at the Property but visited "every now and then…" The people who lived at the Property were usually travelling or studying and paid rent to reside there.
After the inspection Mr Ellis returned to the Council's chambers and obtained the files for the Property. He found that no approved plans existed for the plasterboard wall. In light of the approved plans dated May 1977, the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW) (SEPP) and Schs 2 and 3 of the BLEP, Mr Ellis believed that the plasterboard wall was not exempt or complying development. There was also no development consent to use the Property as a boarding house.
On 24 February 2016 a NPO being a combined Order 1(b), 9(a) and 12(b) was issued to Pan Pac by Mr Trinh. On 14 March 2016 the Council received a letter from Ms Wu responding to the NPO. On 22 March 2016 the Order was issued to Pan Pac. The Order was signed by Mr McClure law enforcement officer with the Council.
Between 3 June 2016 and 20 July 2016 Mr Ellis made three attempts to schedule an appointment with Ms Wu to ensure that the Order had been complied with. For each attempt Mr Ellis sent a letter advising that he would be attending the Property, followed by his attendance at the Property. On the first two attempts no one was present at the Property. On the third attempt Mr Ellis waited for 15 minutes at the Property before departing.
On 20 July 2016 Mr Ellis attended the Property and spoke to one of the residents. Mr Ellis observed that the plasterboard wall had not been removed. The resident gave Mr Ellis a phone number for Ms Wu. He called Ms Wu and asked whether she had received the inspection request letters from the Council. Ms Wu said she had received but not read them. Mr Ellis said that he was at the Property to ascertain whether the Order had been complied with. Ms Wu said she refused to comply with the Order and that the Council could take her to court. On 21 July 2016 an extension of time of 14 days was given in writing to Pan Pac to comply with the Order.
Between 12 August 2016 and 23 August 2016 Mr Ellis wrote to Ms Wu by letter to schedule an ROI. On 31 August 2016 Mr Ellis and Mr Trinh interviewed Ms Wu. A CD containing audio and video footage of the interview was exhibited to Mr Ellis' affidavit. At the conclusion of the interview Ms Wu gave a letter dated 31 August 2016 to Mr Ellis.
On 15 December 2016 Mr Ellis and Mr Trinh conducted a further ROI with Ms Wu. On or about 14 November 2016 Mr Ellis sent the Notice requesting information and records under s 119J of the EPA Act to Pan Pac.
Based on the two ROIs and inspection of the Property Mr Ellis believed that the Property was wholly or partly let in lodgings for periods of three months or more. It had shared facilities such as a communal living room, bathroom, kitchen and laundry and had rooms which accommodated one or more lodgers. The Property therefore fitted the criteria of a boarding house within the meaning in the BLEP. Boarding houses were permissible in the R3 zone with consent.

[15]

Affidavit of Mr Jenner

The Council read the affidavit of Mr Jenner senior manager of compliance with the Council sworn 8 December 2017. Mr Jenner's team investigated the alleged non-compliances relating to the use of 45 Cheltenham Road Croydon. The Council received an email dated 6 April 2017 from Pan Pac which was annexed to Mr Jenner's affidavit. Attached to the email was a development application (DA) form including a drawing plan, a floor plan, a site plan and a waste management plan for the Property. The DA form did not have a DA number. The DA form had not been recorded on any of the Council's management systems and there was no record of the DA being processed by the Council, including by being received over the counter. The DA form was likely not processed as it lacked information such as a statement of environmental effects, adequate floor plans, information about parking, information about a communal open space, measurements against the Council's development control plan (DCP) requirements and measurements against the Affordable Housing State Environmental Planning Policy.
A further email received by the Council from Pan Pac on 6 April 2017 was annexed to Mr Jenner's affidavit. The email attached the incomplete DA form and plans which had been attached to the first email. DA forms could not be lodged electronically and instead had to be brought to the Council in person. DA forms that were emailed to the Council would not be assessed and would be rejected. Mr Jenner did not believe that any communication would have been made with a DA applicant who submitted a DA form via email.
A file note dated 1 May 2017 authored by Mr Burgess an environmental health officer with the Council was annexed to Mr Jenner's affidavit. The file note recorded a conversation between Mr Burgess and a member of the public who had contacted the Council for information about operating a boarding house. Mr Burgess gave general advice that boarding houses had to be registered, development consent had to be granted and certain amenities and facilities had to be provided. He advised the person that they should obtain a pre-development application, a planning certificate under s 149 of the EPA Act and a copy of the most recent development consent determination for their property.

[17]

First ROI dated 31 August 2016

The transcripts of Ms Wu's two ROIs were Exhibit B. An extract of the first ROI between Mr Ellis, Mr Trinh and Ms Wu on 31 August 2016 follows. MR TRINH: … Q 7. Okay. So the questions that I ask and the answers that you care to give will be recorded on audio and visual equipment. A Yeah. Sure. Q 8. As the record of interview takes place, you are not obliged to say or do anything related to the questions that I ask, but anything you say or do will be recorded and may later be used as evidence. Do you understand that? A Yeah. Sure. Q 9. Yes? Okay. For the purpose of the interview can you state your full name? A Yeah. Jan Wu. Q 10. Jan? Can you spell that for me, Jan? A Jan, J-a-n W-u. Q 11. And state your date of birth? A 12 May 1963. Q 12. 12 May 1963. O.K. Can you please state your address? A 45 Cheltenham Road, Croydon, 2132. Q 13. Are you the owner of the property---- A Yes. Q 14. --- of 25, 45 Cheltenham Road, sorry? Yes. Okay. Council has issued orders to the owner of this property in relation to an illegal use and for illegal works. I will show you a copy of the order. Are you aware of this order? A Yes - yes. Q 15. You are, okay. Council has also issued numerous inspection letters to ascertain compliance of the orders and if they've been satisfied. Are you aware of this? A I was told the other day, somebody call me, can't remember the name and say they try to assess my property and nobody home and a few times I say in, I'm not aware, they say they send a letter to me but I say, I'm single mum now so I don't usually go to my mail box, open letter often. Usually like once a month and so if there's something you want to reach me you call me, but generally the house is very quiet and people all go out to work during the day so --- Q 16. Yeah. A --- yeah, you don't usually see people, yeah. Q 17. Okay. Okay. A letter was sent to the owner of the property allowing an extension to comply with the order ceasing on the 5th of August. Are you aware of this? A I'm not aware and probably again, and I'm so busy these days so I not all the letters, you know, when I go through the letters, I pay my bills the first. … Q 26. Okay. Why have no words [sic] been undertaken to comply with the order? A There is no action taken whatsoever… … Q 52. Okay. So do you wish to make any further statements relating to this matter? … Q 68. … A And so that's O.K with me. So what happened is because nobody using it so I've been told I can just convert it to the - the separate dining room to convert it to the bedroom so that's what I did. Number one, I looked a law say and - you know, I - I am entitled as an owner to use room for different purpose, is it for eating or for sleeping. I - I have the right to do that. Second, and nothing change. I put the plaster board there. It's a temporary fix, temporary things, you know. It can be taken down in one day and - and the law did not say and say, People own five bedroom or more house have to apply for boarding house and I called the Fair Trade - Fair Trading on that day when I spoke to Renee and I said, Fair Trading said the law, there is no law saying big house over five bedroom or more has to apply for boarding house licence and I like to, you know, after this meeting put a red flag on my house to say ignore this complaint ---

[18]

Second ROI dated 15 December 2016

An extract from the second ROI between council officers Mr Ellis and Mr Trinh and Ms Wu on 15 December 2016 follows. … MR ELLIS: 112. Okay. So as I've said, my name is Oliver Ellis. This is Tai Trinh. Thank you for attending today. As I've indicated in my letters to you Council is investigating the unlawful use of the premise at 45 Cheltenham Road, Croydon, New South Wales. Okay. It's alleged that the premises is being used as a boarding house. Backpackers accommodation or some other form of accommodation that the use is unlawful. Okay. The questions that I ask you and the answers that you care to give today will be recorded on audiovisual equipment. I'm authorised to do this by virtue of Section 119 lima of the Act Okay. As the record of interview takes place you are not obliged to say or do anything relating to the questions that I ask and --- Q A Do you mind if I ask you what is the 119 Lima? MR TRINH: 113. 119L. Q … MR ELLIS: 118. Okay. So yeah, so as the record of interview takes place, you're not obliged to say or do anything relating to the questions that I ask. But anything you do or say will be recorded and may be later used in evidence. Do you understand that? Q A Yeah. Sure. Q 119. Okay. Okay. So we're just going to ask you some questions. We'll just go through them. … Q 130. Okay. Do you agree that you mentioned in a previous interview that we had this year that the property is rented out to tenants? A Yes. Q 131. Yeah. A Under shared accommodation arrangement. Q 132. Okay. Okay. A Rent out to good people. Q 133. Yeah. A I only have one person for each room and currently there is a couple in one room. I generally won't have more than one person for each room. … Q 135. No worries. Okay. How long can people rent or lease rooms at the property? A So far no ending day. If they are good they can stay at my place. I sign three months lease agreement. That's a minimum I can have and they, if they are happy they can stay there as long as they want and if they are not they can move by giving me two weeks notice. If I'm not happy I can give them two weeks notice as well. … Q 164. --- to one year lease? Would you look at long term leases like that or? A I would do whatever the law requires. And Fair Trading say the minimum lease is three months so I take the opportunity of giving the three months because both party - it's not something that we have binding people in together. It's, you know, it's a demand and a supply and I use the three months to see how they are and then I use another, they want to use the three months and I see whether they can get on with people or not. … Q 171. Yeah. Okay. Okay. What - what's the greatest time a tenant has remained in the property in the past? Like what's - what's the longest someone has ever stayed renting? A That was Rocko. That was Rocko. The guy had a heart attack and passed away. Q 172. Okay. How - how long a period did he rent? A About five years. … Q 188. Okay. As far as your rent goes, how much is the rent to stay at the property for either - you said that you lease out an entire room. A Yes. From $180 Q 189. Okay. A --- to $250 and they have their own room, everything included, all the bills, internet included. Q 190. Okay. Is that 180 to 250 is that --- A Per week. Q 191. --- decided per - per, is that --- A Per room. … Q 207. Okay. Is there any bond required for? A Yes, four weeks bond. … Q 212. Okay. What, what form of receipt is given to the tenants? Do you give them any receipt at all for their --- A Yes. … Q 235. Okay. So are any of the rooms self contained? Do they have an en suite or a kitchen within the rooms? A No - no. … Q 243. One kitchen. Okay. So the facilities on the property, what - what, which of those are shared? You'd say? A The laundry and kitchen. Q 244. The laundry and kitchen? A Bathroom. … Q 249. Where - where exactly do you advertise? Do you advertise? A I advertise on the Gumtree. In the past I advertise on the local newspaper or before that I advertise on the Sydney Morning Herald. … Q 269. Okay. What was the house being used for when you purchased it? A It has always been a shared accommodation arrangement. Q 270. Okay. A It has always been so far. It was going to have the development because I lost so much money and so sitting idle like that. Q 271. So the - the old lady who owned the property before she was using it as a shared house as well? A I'm not sure. I can't speak on their behalf. Q 272. Okay - okay. So you don't know - you don't know what was happening before --- A Yeah. Q 273. --- you purchased it? A No I did not ask this personal question. Q 274. Okay. So when did you decide to start renting or leasing the rooms at the property? A From 2007. Yeah. …

[19]

Affidavit of Ms Wu affirmed 5 April 2018

Ms Wu affirmed an affidavit on 5 April 2018 which was filed in court at the hearing. The affidavit states that Ms Wu is a 54 year old Chinese single mother with a three year old child. She has lived in Australia for approximately 30 years. Ms Wu is a registered nurse. She has run a Commonwealth approved aged care and disability service for 24 years. Ms Wu annexed the following documents to her affidavit: 1. a letter dated 2 September 2010 from Ms Wu to the Council's general manager regarding an inspection of the Property by a council law enforcement officer; 2. an email dated 5 May 2014 from Ms Wu to the Council regarding an inspection of the Property by council law enforcement officers following complaints made about the Property being used as a boarding house; 3. an email dated 14 May 2014 from Ms Wu to Mr Jenner regarding an inspection of the Property by council law enforcement officers following complaints made about the Property being used as a boarding house; 4. an email dated 2 July 2013 from Ms Wu to the Council regarding a dispute with a neighbour to the Property; 5. a copy of the 2014 Order; 6. a copy of the Council's DA mediation policy; 7. a page from the "Burwood Council sub-delegation to council officers" from the general manager; 8. a list of registered National Disability Insurance Scheme (NDIS) providers; 9. a list of registered providers for AusCare Multicultural Home, Community & Disability Services; 10. a printout of information about Supported Independent Living (SIL); 11. a page containing the definition of a boarding house from the BLEP which Ms Wu referred to as the DCP; 12. advertisements on www.hometogo.com.au and "www.gumtree.com.au" for share accommodation in Burwood; 13. an email from Ms Wu to the Council dated 6 April 2017 which was also annexed to Mr Jenner's affidavit; 14. a schedule of emails Ms Wu sent to the Council between 3 March 2017 and 20 April 2017; 15. a notice to terminate a tenancy agreement for the property at 1/1 Pilgrim Avenue Strathfield; 16. an email from Ms Wu to the Council dated 4 January 2018 following a visit to the Property by a council officer named Mr Wilson when no one was present at the Property; 17. a copy of the DA form Ms Wu sent to the Council by email on 4 April 2017 with the May 1977 approved plans and the Council's land use map attached; 18. an online banking receipt for $384.20 paid by Ms Wu to the Council on 6 April 2017 as the fee for lodgement of a DA; 19. a fire safety certificate for the Property dated 10 October 2017; 20. sections 8A, 8C, 22, 76, 77, 79, 84 and 85 of the LG Act; 21. a bank account details form for the NDIS; 22. a copy of the Australian Privacy Principles Fact Sheet 17 dated January 2014; 23. a two page extract from Ms Wu's ROI on 15 December 2016; 24. a photograph of the kitchen at the Property; 25. a photograph of the plasterboard wall; 26. sections 4 and 76(1) and (2) of the EPA Act; and 27. () Schedules 2 and 3 of the SEPP.
Ms Wu purchased the Property in 2007. The Property has two side gates, a double-sided front door, two back doors, two balconies, tiled floors, a marble staircase and chandeliers on all light fittings. Between 2007 and 2017 Ms Wu primarily let the Property to people who were aged or had a disability. The residents either paid for the accommodation themselves or were supported by the Commonwealth government. Ms Wu used the rental income to pay her mortgage. She made no structural changes to the Property between 2007 and 2017. Ms Wu installed the plasterboard wall in 2007 just after she purchased the Property. The plasterboard was glued to the archway and was not intended to be a permanent fixture. She installed the plasterboard to make better use of the lounge room.
In 2014 Ms Wu submitted an application to the NDIS to use the Property as accommodation for people with disabilities. SIL is the term used to describe accommodation for people with a disability. Only approved service providers can provide SIL services. Ms Wu annexed registration lists for NDIS providers and AusCare Multicultural Home, Community & Disability Services to her affidavit. She also annexed a printout giving details about SIL.
The Property is zoned R3 Medium Density Residential. This zoning allows the Property to be used as a boarding house. The number of occupants in the Property varied over time. Between 2007 and 2014 the Council inspected the Property a number of times after receiving complaints that it was being used as a boarding house. Ms Wu stated that Mr Jenner was aware of the complaints made about the Property owing to the email she sent on 14 May 2014, referred to above at [40(c)].
In 2014 the Council received complaints about use of the Property as a boarding house and inspected the Property. The Council had issued a NPO. Ms Wu had responded to the NPO. The Council then issued the 2014 Order. In 2014 the Council offered a meeting with Mr Morley senior compliance officer with the Council which led to the matter being resolved. Ms Wu considered the meeting to be a mediation. She annexed a copy of the Council's DA mediation policy to her affidavit.
Ms Wu set out a narrative of the meeting with Mr Morley in 2014. At the meeting Ms Wu explained that she had received an order from the Council about using the Property as a boarding house and removing the plasterboard wall. She believed that someone had made a complaint to the Council about the Property as revenge. Three complaints had been made about the Property. At the meeting Mr Morley said he recalled the Property. He stated that the law had changed and that there had been many incidents relating to boarding houses. He asked if the Property had adequate access and smoke alarms. Ms Wu replied that she had made no changes to the Property. Mr Morley said she was to inform him of any future changes to be made. Ms Wu believed that Mr Morley's position reflected that of the Council.
As no action was taken in relation to the Property in 2014, Ms Wu assumed that the Council thought the issues were insignificant and the Property was not being used as a boarding house. She also understood this to mean that Pan Pac had complied with any council requirements. Ms Wu believed that mediation was part of the Council's procedure for addressing complaints. Between 2007 and 2016 the Council took no action in relation to the Property except for conducting inspections.
In 2016 the Property was inspected by two council officers whom Ms Wu had not met. She attended two ROIs with the Council which were videotaped. The ROIs did not take the same form as the meeting Ms Wu had attended in 2014 with Mr Morley. The council officers used a list of standard questions at both ROIs. They did not seek to answer Ms Wu's questions and said they would speak to Steve about her concerns. The council officers did not state the purpose of the ROIs.
After receiving the summonses in March 2017 Ms Wu called the Council to speak with Mr Morley. She was informed that he no longer worked at the Council. Ms Wu made numerous other attempts to contact the Council. A schedule of 37 emails sent by Ms Wu to the Council between 21 March 2017 and 20 April 2017 was annexed to her affidavit. Ms Wu also attended at the Council's chambers where she was informed that council staff had been told not to speak with her and to re-direct any correspondence to the council law enforcement officers.
In issuing the Order and Notice the Council did not follow the procedure it used in 2014. In 2016 Ms Wu was not offered mediation prior to court proceedings being commenced. Ms Wu believed that the Council had acted dishonestly in not informing Pan Pac of how it could rectify the boarding house and plasterboard wall issues.
The Council did not have a standard procedure to apply for a change of use for the Property. Ms Wu was told by one council employee that she need only inform the Council of the change of use whilst another council employee told her she would need to submit a DA.
The Council's DCP [BLEP] was inconsistent with the Boarding Houses Act. The Boarding Houses Act defined a boarding house as premises with five or more residents who were not related. The Council's DCP [BLEP] defined a boarding house as a premises with rooms which had one or more lodgers. Ms Wu stated that there were a number of properties in Burwood which were used for share accommodation. The Council's DCP [BLEP] would therefore put many Burwood residents in breach of the laws relating to boarding houses.
After receiving the summonses in March 2017 Ms Wu asked tenants at the Property to leave. This caused financial loss to Pan Pac.

[20]

Cross-examination of Ms Wu

In cross-examination Ms Wu was asked whether she had been providing accommodation to people who were aged or had a disability between 2007 and 2014. Ms Wu said that she had never used the Property as a boarding house. She had always used it to provide accommodation for people who were aged or had disabilities. Between 2007 and 2014 the Property was classified by the Commonwealth government as "accommodation support". After 2014, the Property was classified as SIL or "special [sic] living". Approximately 80 percent of the residents at the Property were funded by government payments to SIL clients. About 20 percent of clients were not "special [sic] living" clients.
Ms Wu agreed that neither her name nor Pan Pac were listed on either of the registration lists for NDIS providers and AusCare Multicultural Home, Community & Disability Service providers annexed to her affidavit. It was put to Ms Wu that the first mention of the Property being used as accommodation for people with disabilities was in her affidavit affirmed on 5 April 2018. Ms Wu said that she had told Mr Morley about using the Property as accommodation for people with disabilities. It was put to Ms Wu that during the inspection on 29 January 2016 she told Mr Ellis that people who were "travelling or studying" resided there and made no mention of people with disabilities. Ms Wu said that 80 percent of the residents were aged or had a disability. When there were rooms available which could not be filled by people with a disability, she would let the rooms to non-disabled people.
A copy of the NPO and the response Ms Wu wrote to the Council on 14 March 2016 were shown to Ms Wu. The response dated 14 March 2016 contained a reference to "share accommodation and boarding house rules". It was put to Ms Wu that she had used this terminology because she knew that she was operating a boarding house. Ms Wu disagreed that this meant she had been running a boarding house as at 14 March 2016.
Ms Wu was shown the transcripts of her ROIs (Exhibit B) where she had said there was no onsite manager at the Property. In cross-examination Ms Wu said she employed a housekeeper named Patrick who lived at the Property. Ms Wu was shown a copy of the plans for the Property dated May 1977. She confirmed that the Property had steps to enter the front door, a staircase in the middle of the Property, two bedrooms on the ground floor and six bedrooms on the first floor. Ms Wu had installed a ramp purchased from Bunnings at the rear of the Property so that it would be accessible to people with disabilities.
Ms Wu was shown a copy of the DA form she sent by email to the Council to change the use of the Property. It was put to Ms Wu that she had lodged the application because she intended to use the Property as a boarding house. Ms Wu said that she had lodged the application for a boarding house as there was no other category of housing which the Property would come within. In her letter to the Council dated 4 April 2017 Ms Wu stated that the Property met the requirements for a boarding house under the Boarding Houses Act. Ms Wu said that this did not mean she considered the Property to be a boarding house and was only referring to it in this way to please the Council.
It was put to Ms Wu that a share house is where one lodger holds a lease with a landlord and then arranges for other tenants to live at the premises. Ms Wu disagreed stating that there were two possible types of share house arrangements. The first was where a lodger shared accommodation with the landlord. The second was where a lodger shared accommodation with a person who rented the premises from the landlord. Ms Wu said that each person at the Property had an individual lease agreement.
Ms Wu said that she did not fully read the Order when it was issued on 22 March 2016. She had not sought to appeal the Order as she was unaware that she had a right to do so.
Ms Wu agreed to the proposition that the plasterboard wall had been in place from at least 29 January 2016 until 6 April 2017. Ms Wu installed the plasterboard wall herself.

[22]

Council submissions

The elements of the s 121B offences have been established beyond reasonable doubt. Mr McClure the officer who issued the Order was duly authorised as a law enforcement officer to issue orders under the EPA Act as identified in his affidavit. The evidence of Mr Ellis confirmed that neither part of the Order (to cease use as a boarding house or to demolish the plasterboard wall) was complied with in the time stipulated including during the two week extension.
In relation to Ms Wu's submission that the summonses had been filed outside the limitation period the Council submitted that the time for compliance with the two Order offences was 5 August 2016 and the time for compliance with the Notice offence was 25 November 2016. The three summonses had been filed on 3 March 2017 and were therefore within the two year limitation period in s 127(5) of the EPA Act.
The Council submitted that Ms Wu's contention that Pan Pac could rely on existing use rights was misconceived. As Pan Pac had not appealed the making of the Order the possibility of existing use rights had no bearing on whether Pan Pac had complied with the Order. The only defence available to Pan Pac was s 125(4) requiring proof that it was unaware of the fact that the matter giving rise to the offence was the subject of an order. The Council referred to Ms Wu's correspondence with the Council on 14 March 2016 and 31 August 2016 to support its submission that Ms Wu as director of Pan Pac was aware of both the Notice and the Order. Further, as a boarding house is not prohibited under the BLEP and is permissible with consent the definition of "existing use" in s 106 of the EPA Act is not applicable and therefore the issue of whether the protection afforded under s 107 applies does not arise. Additionally the onus in respect of proving existing use rights lies with the party seeking to rely on the existence of such a right: Australian Posters Pty Ltd v Leichardt Council (2000) 109 LGERA 343; [2000] NSWLEC 195 at 349. The answers given by Ms Wu during her ROI on 15 December 2016 (particularly answers 271-274 extracted above at [39]) demonstrate that Ms Wu had no factual basis for suggesting how the Property was used by its previous owner.
In relation to Ms Wu's submission that she was denied procedural fairness the Council submitted that she was given multiple opportunities to participate in or respond to the steps taken by the Council during its investigation. The Council referred to the telephone conversation between Ms Wu and Mr Ellis on 29 January 2016, the correspondence between Ms Wu and the Council on 14 March 2016, the telephone conversation between Ms Wu and Mr Ellis on 20 July 2016, and the two ROIs (above at [19], [21], [23], [38] and [39] respectively) to demonstrate the opportunities Ms Wu had to respond to the Council's investigation. Citing Mason J in Kioa v West (1985) 159 CLR 550; [1985] HCA 81 at 582 the Council submitted that Pan Pac knew the case sought to be made against it and was given an opportunity on multiple occasions of replying to it.
The Council submitted that Ms Wu's argument that the plasterboard wall was too minor to require development consent was misconceived as the work did require consent pursuant to s 96(1) of the EPA Act. The construction of the plasterboard wall constituted "work" and "the carrying out of work" as defined in s 4 of the EPA Act. Therefore in the absence of the work constituting "exempt development" or "complying development" under the SEPP or under Schs 2 or 3 of the BLEP, development consent was required. In relation to the SEPP the plasterboard wall was not "exempt" or "complying" development as it did not amount to minor building alterations for the purposes of cl 2.51. The plasterboard wall did not involve "…replacement or renovation…" of a doorway pursuant to cl 2.51 but instead amounted to filling an archway so as to create two bedrooms where there had previously been a dining and lounge room area. Further, the work did not satisfy the requirements for "exempt development" under Sch 2 of the BLEP as this only applies to advertising signs nor did it satisfy Sch 3 as this schedule is unused and therefore the SEPP requirements are the default.

[23]

Order to cease using the Property as a boarding house

Ms Wu on behalf of Pan Pac denied using the Property as a boarding house. She only used that term in the DA form emailed to the Council because that was the term most readily understood by the council staff. Her use of the Property for SIL services did not suit that definition. Ms Wu submitted that her use of the Property for such accommodation was fully funded and approved by the Commonwealth government. Some 80 percent of her lodgers had a disability or were aged. She has been in the aged care business since 1993.
Pan Pac submitted that the Council owed a duty of care to its customers and was bound by the responsibilities outlined in ss 8 and 22 of the LG Act. Pan Pac also relied on the following sections of the EPA Act: 4, 26, 30, 33A, 33C, 36, 72J, 76A, 76B, 78, 78A, 79C, 80, 104A, 107, 108 and 109.
The 2014 Order issued to Pan Pac was in almost identical terms to the Order issued on 22 March 2016. As no further action was taken by the Council until 2016, Ms Wu did not consider that there was any issue with her use of the Property as she had not changed its use in that time.
Owing to the manner in which the 2014 Order was dealt with, Ms Wu believed that the request to attend an ROI would result in a consultative discussion. She submitted that she was not aware that the Council's procedure for liaising with people the subject of orders or notices had changed between 2014 and 2016. If told orally of the Council's position in 2016 she would have complied with the Order. She should have been informed of any change in the Council's position or policy.
The ROIs did not provide her an opportunity to consult with the Council as the officers used prepared questions. Ms Wu submitted that she should have been told at the second ROI that the matter would be proceeding to court if she did not comply. Ms Wu further submitted that this belief was the reason for her not submitting an application to change the use of the Property until after the summonses were filed in March 2017. The Council set her up to fail in the ROIs and therefore denied her procedural fairness and legitimate rights. The Council had no interest in resolving the matter peacefully. In additional submissions Ms Wu submitted that Sch 5 cl 14 of the amended EPA Act required the Council "…to hear and to consider…" any representations made under the Part. Ms Wu also submitted that the Council's conduct was contrary to ss 8A and 8C of the LG Act and therefore also denied her procedural fairness and natural justice.
The Boarding Houses Act defines a boarding house as more than five people. She did not always have five lodgers. The Council's DCP [BLEP] conflicts with the Boarding Houses Act.
Ms Wu raised the issue of existing use. Ms Wu referred to ss 106, 107 and 109B of the EPA Act in submitting that Pan Pac was able to continue using the Property as it had done so prior to the BLEP being amended in 2012. The use had continued since 2007. A council officer had inspected the Property in 2009 and 2010 and no action had been taken in relation to her use of the Property.
Ms Wu also submitted that the Council had brought proceedings outside the limitation period. Ms Wu referred to s 127 of the EPA Act and stated that owing to the 2014 Order the Council was aware of the issue more than two years before it filed the summonses on 3 March 2017 and had therefore filed the matters outside the limitation period.
Ms Wu referred to ss 5(3)(g), (h), (i), (k) and 37(2) of the Boarding Houses Act to support her contention that she used the Property as a care facility. Sections 5 and 37 of that Act stated that a "general boarding house" and "an assisted boarding house" exclude private health facilities, nursing homes, mental health facilities and residential care facilities. I infer that Ms Wu was making the submission that because her use of the Property would fall into one of the categories listed in ss 5 or 37(2), it necessarily could not be used for the purpose of a boarding house. Ms Wu also submitted that the Council characterised all commercial uses of a property as use for the purpose of a boarding house, contrary to the BLEP. Therefore, even if she had informed council officers on each occasion she had contact with the Council that Pan Pac was using the Property as a care facility this would have been to no end owing to the Council's characterisation of all commercial uses as being for the purpose of a boarding house.
The two additional emails dated 11 April 2017 relied on by Ms Wu further supported her submission that Pan Pac used the Property as a care facility. In the first email of 11 April 2017 sent from Ms Wu to a person named Yinny, Ms Wu stated that an NDIS workshop about care accommodation would be running and that she would be in attendance. In the second email of 11 April 2017 sent from Ms Wu to Yinny, Ms Wu stated that she had purchased two tickets to the NDIS workshop, one for herself and one for Yinny. Attached to the email were the two tickets and a "Dwelling Enrolment Declaration" form dated 24 July 2017 for the National Disability Insurance Agency which identified the address of the Property for registration.

[26]

Use of the Property as a boarding house in breach of Order proved beyond reasonable doubt (Charge 2)

Based on the evidence adduced by the Council the elements of the Order offence of failing to cease use of the Property as a boarding house within a specified time have been established beyond reasonable doubt for the reasons which follow. Pan Pac was the registered owner of the Property during the period the Order was issued and was therefore required to comply.
I observe that boarding houses require development consent under the R3 Medium Density Residential zoning for the Property under the BLEP. There is no record held by the Council that development consent was obtained for such a use for the Property. Use of land for a boarding house is not exempt development under s 76(1) of the EPA Act.
I observe that the Council's authorised law enforcement officer Mr Trinh complied with s 121H of the EPA Act in issuing a NPO. A duly authorised officer Mr McClure issued the Order under s 121B. The delegation to him of the appropriate powers under the EPA Act was annexed to his affidavit. This evidence satisfies the first and second elements of the offence, identified in [14] above.
Ms Wu responded on behalf of Pan Pac to the NPO by letter dated 14 March 2016 and responded to the Order in a letter dated 31 August 2016 which she gave to the Council on the same day at the first ROI. These responses confirm that she was clearly aware of the intention to issue an order and the Order. Ms Wu can be assumed to be aware of the terms of the Order issued on 22 March 2016. Consequently s 125(4) of the EPA Act does not apply.
"Boarding house" is defined in the BLEP as a building wholly or partly let in lodgings to lodgers for three months or more which may have shared facilities with rooms accommodating one or more lodgers. The observations of Mr Ellis at the Property including conversations with lodgers (see [19] above) and Ms Wu's responses in the second ROI (see [39] above) confirm that the definition of "boarding house" in the BLEP was satisfied by the use of the Property leading up to and during the period of the Order. On 29 January 2016 when Mr Ellis inspected the Property Ms Wu stated that she generally rented the Property to people who were travelling or studying and did not reside there herself. On this occasion Mr Ellis observed that many of the internal doors had locked door handles. In the second ROI Ms Wu stated that she rented out the Property for share accommodation (Q 130-131) for periods of at least three months or more (Q 135), that rent was $180-250 per week (Q 188-207) and that facilities such as the kitchen, bathroom and laundry were shared (Q 235, 243-244). The extensive consideration by Molesworth AJ of the facts relating to what constitutes a boarding house in Sun v Randwick City Council [2017] NSWLEC 188 is not necessary in this case.
The evidence of Mr Ellis at [23] above outlines his inspection of the Property on 20 July 2016 which confirmed that the Order was not complied with in the timeframe specified in it or in the period of the extension of time granted.
The Order advised of the appeal right available to Pan Pac which was not availed of. As no appeal right was exercised in relation to the Order on a strict view of the elements of the offence that is the end of the matter. Pan Pac is guilty of failing to comply with the Order to cease using the Property as a boarding house within the specified timeframe, the third element of the offence identified in [14] above and consequently is in breach of s 125(1) of the EPA Act.
Ms Wu claimed she did not use the Property as a boarding house but rather used it for independent assisted living for aged people and people with disabilities because she was paid by the department (unspecified) and there were staff on site. Ms Wu claimed some 80 percent of lodgers were aged or had a disability. The material attached to her affidavits did not support her statement that Pan Pac was approved by the relevant Commonwealth department to provide such services. No mention of Pan Pac or Ms Wu is made in the material attached to her first affidavit consisting of lists of providers of such services read at hearing. The material attached to her second affidavit affirmed 15 June 2018 filed with leave after the hearing refers to her attendance at an NDIS workshop about care accommodation in 2017, well after the date of the offence which concerns events in 2016. Apart from giving rise to an inference that Ms Wu attended such a workshop no other relevant matter is established. The "Dwelling Enrolment Declaration" form dated 24 July 2017 attached to one of the emails does not prove anything in relation to whether Pan Pac provided care facilities in the charge period. In the absence of any indication from a relevant bureaucracy of acceptance of the form, its existence does not confirm any relevant fact.
Significantly no mention of this alleged use was advised by Ms Wu during either ROI or in any of Ms Wu's correspondence sent in 2016 on behalf of Pan Pac to the Council in relation to the Order. The first mention of such a use by Ms Wu was in her affidavit affirmed 5 April 2018 read in these proceedings. Ms Wu stated in her oral evidence that she had told Mr Morley a former council officer on several occasions that the use of the Property was for people with disabilities.
In cross-examination Ms Wu was asked about the layout of the house which had six bedrooms and a bathroom upstairs and two bedrooms downstairs (formerly the lounge room and dining room in the May 1977 plans). She stated that the only improvement needed for her clients was a ramp she purchased at Bunnings to enable wheelchairs to access the rear of the house. This evidence strains credulity as being the provision of adequate accommodation for people who are aged or have a disability given that the majority of bedrooms were on the second floor accessible only by stairs.
Ms Wu's evidence of staff is that one of the tenants living at the Property was employed as a housekeeper, see [56] and [84] above. The assertion that this was the employment of staff sufficient to justify the finding of a use as a group home or independent assisted living is not sustainable in the absence of any other supporting evidence.
Pan Pac did not submit that its use of the Property fell within any particular definition in the BLEP until submissions filed after the hearing to the effect that the use was as a group home. The definition of "group home" in the BLEP is set out in [10] above. "Residential care facility" is also identified by the Court as a possible description of what Ms Wu contended for. The use of the Property does not reflect the definition of "group home" whether permanent or transitional in the BLEP. There is no evidence adduced by Ms Wu that the persons occupying the Property in the charge period (or any other time) operated as a single household or that the dwelling was used to provide permanent household accommodation for people with a disability or for people who were socially disadvantaged or to house temporarily people with a disability undergoing rehabilitation. Ms Wu's submission was little more than an assertion of such a use. "Residential care facility" is not applicable because the specified services in the definition are not provided by Pan Pac.
Ms Wu's description of the use of the Property as the provision of services to people who are aged or have a disability, even if true, does not prevent the use being as a "boarding house" as defined under the BLEP if the definition is met by the use of the Property. I have found above that it is.
Ms Wu also referred to the definition of "boarding house" and "assisted boarding house" in the Boarding Houses Act, set out above in [11]. That Act is not relevant to this offence under the EPA Act.
The Council made three submissions in response to Pan Pac's allegation that the Property was being used for a commercial purpose rather than as a boarding house. Firstly the Council relied on Sun v Randwick City Council [2017] NSWLEC 188 as being an analogous case referring to [76]-[77] which discussed the construction of the term "boarding house". Molesworth AJ at [76] cited Ashfield Municipal Council v Australian College of Physical Education Ltd (1992) 76 LGRA 151 (Ashfield) at 155 stating that "[w]hat has to be considered is the use and occupation of the premises on the facts adduced in evidence." A boarding house was defined in Ashfield at 155 as being a house "let in lodgings" with "lodging" meaning accommodation hired in rooms. Pan Pac's use of the Property meets the requirements for use as a boarding house. Secondly Pan Pac did not specify the commercial purpose for which it contended the Property was being used. The use of the Property for the purpose of "commercial premises" as defined in the BLEP would not have been permissible in the zone in which it is located in any event. Thirdly the Council submitted that if Pan Pac was referring to a use whereby in the course of commerce or trade it rented out rooms at the Property, the reference to the use of the Property should be taken to be as a boarding house. I agree with these submissions as they are consistent with the evidence before me.
According to Ms Wu use of the Property for share accommodation commenced in 2007 which use was known to the Council. Accepting that council officers were aware of the use of the Property the only relevant conclusion to draw is that no enforcement action was taken by the officers. No legal basis for such a use is established by its commencement in 2007 whether with or without acquiescence by council officers. Ms Wu sought to rely on existing use rights under s 106(1) of the EPA Act. These may arise where a lawful use becomes prohibited at a later date. Boarding houses are not prohibited under the BLEP. The Council's submission set out in [64] above are accepted and Ms Wu cannot rely on any existing use entitlement.
In relation to allegations by Ms Wu of lack of procedural fairness by the Council, the required notice was given, the Order was clear in its terms and required compliance initially within 28 days of being issued on 22 March 2016. A two week extension for compliance was granted. As is clear from the evidence, Mr Ellis unsuccessfully attempted to check whether there had been compliance on three occasions between 3 June 2016 and 20 July 2016. Mr Ellis asked Ms Wu in a telephone conversation on 20 July 2016 if she had received the inspection request letters from the Council. Ms Wu said she had received them but not read them. In the telephone conversation Ms Wu told him she refused to comply with the Order. Ms Wu was on notice that the Council expected compliance with the Order. The Council granted an extension of time for compliance of 14 days and so advised in writing by letter dated 21 July 2016.
After the periods for compliance with the Order had expired, Ms Wu voluntarily attended two ROIs with council officers which were videotaped. The ROI's are partially extracted above in [38] and [39]. Ms Wu was told the reason for the ROIs and that her answers would be recorded, that she did not have to answer any questions and that any answers she provided may be used in evidence. Pan Pac also had the opportunity to make written submissions which Ms Wu did on its behalf on two occasions. The Council was under no obligation to engage in mediation with Ms Wu in matters of possible offences under the EPA Act. Further, the mediation policy relied by Ms Wu concerns DAs and none was lodged at that time by Pan Pac. No duty of care was owed to Ms Wu by council officers requiring them to act in the manner Ms Wu considered appropriate. Ms Wu's submissions that Pan Pac was denied rights and procedural fairness are not accepted in these circumstances.
Honest and reasonable mistake of fact can be a defence to a strict liability offence. Ms Wu has not identified any relevant mistake of fact to found such a defence. Her belief that the Council's actions in 2016 would reflect its actions in 2014 according to Ms Wu's version of events is unrelated to the elements of the offence of failing to comply with the Order.
For the reasons given by the Council, set out in [65] above there was no failure to commence proceedings within time.
The failure to comply with the Order can be described as an offence of strict liability. Therefore whether Pan Pac by its sole director Ms Wu failed to comply because of an expectation about how the Council would behave is immaterial to a finding of guilt. Ms Wu's reliance on the alleged lack of follow- up to the 2014 Order in very similar terms as indicative of the Council's approach she expected in 2016 is irrelevant to guilt. Whether the failure to comply by Pan Pac acting through Ms Wu was mistaken or intentional does not affect whether Pan Pac is guilty of Charge 2.

[29]

Section 119J Notice (Charge 3)

The terms of the Notice issued by the Council pursuant to s 119J dated 14 November 2016 were: Miss Yan Wu Pan Pac Investments Pty Ltd PO Box 335 STRATHFIELD NSW 2135 Pursuant to Section 119J of the Environmental Planning and Assessment Act 1979, I am requiring you to furnish information and records as identified in the following schedule to Burwood Council by 4:30pm on Friday 25th November 2016: SCHEDULE 1. In relation to 45 Cheltenham Road Croydon NSW - all rental books; all receipt books and documents recording rent received since 2007; any other books, documents or electronic records recording rent taken. 2. In relation to 45 Cheltenham Road Croydon NSW - all payment journals relating to the leasing, renting or hiring of any room, bed or dormitory at the premises; profit and loss statements and journals relating to the leasing of the premises or part of the premises; books and records of tenant movements in and out of the premises for the period of time that Pan Pac Investments Pty Ltd has owned the premises; 3. In relation to 45 Cheltenham Road Croydon NSW - all records, invoices and receipts relating to cleaning and maintaining the premise by any third party from 2007 to the date of this letter; 4. In relation to 45 Cheltenham Road Croydon NSW - all invoices, receipts, employment contracts and any other records relating to the employment of a caretaker at the premises and/or the management by any third party of tenancy, lease and accommodation arrangements at the premises or over any part of the premises from 2007 to the date of this letter. 5. In relation to 45 Cheltenham Road Croydon NSW - all accounts, receipts, tax invoices and other documents and records relating to the advertising of the premises for any form of accommodation; 6. In relation to 45 Cheltenham Road Croydon NSW - all copies of advertisements for accommodation; proofs or drafts of advertisements for accommodation; printouts of internet advertisements for accommodation; and, links to internet sites relating to the advertising of the premises for any form of accommodation. There is no need to furnish real estate advertising relating to the sale of the premises in 2007 to Pan Pac Investments Pty Ltd. NOTE: if any record listed in the schedule is in electronic form, then the record is to be furnished in written form unless this notice otherwise provides (section 119J (5)). NOTE: An investigation officer may take copies of any of the material provided (section 119J (5)). How to comply with this notice You may comply with this notice by delivering the items in the schedule personally or by an agent to Council's premises at Suite 1, Level 2, 1-17 Elsie Street Burwood NSW by the date and time specified above. Alternatively, you may forward the items by posting them to Council, attention Oliver Ellis, so that they arrive by the time and date specified above. A failure to furnish the information as requested and in the manner specified constitutes an offence against the Environmental Planning and Assessment Act 1979. Please find enclosed a copy of section 119J of the Act. If you have any questions in relation to this notice, please do not hesitate to contact me on xx11. Yours faithfully Oliver Ellis Law Enforcement Officer

[31]

Evidence

The Notice was issued on 14 November 2016 and compliance with its terms was required by 25 November 2016, see affidavit of Mr Ellis above at [25]. At the time of deposing his second affidavit of 6 December 2017 Mr McClure had not received any records or information from Pan Pac pursuant to the Notice.
An extract of the second ROI (conducted on 15 December 2016) between Mr Ellis, Mr Trinh and Ms Wu follows: MR ELLIS … Q 212. Okay. What, what form of receipt is given to the tenants? Do you give them any receipt at all for their --- A Yes Q 213. --- payments? A Yes I have a receipt. Q 214. Okay. A Yeah. Q 215. So do you actually give them any receipt? A Yes I do. Q 216. In what - what form do you give that to them? A I give them like a A4 paper. Q 217. Okay. A So I have this record. Q 218. So it's a hard copy? A A hard copy. Q 219. On paper? Yeah. A And I have another duplicate copy and then it's so to keep my record. Q 220. Okay. A Yeah. Q 221. All right. Okay. So you said that you keep a copy of the - of the receipts? A Yes, of course. Q 222. Okay. Where - where do you keep the receipts that you produce? A I kept them at home, yeah. I have a box. Q 223. At? A I have a suitcase. Q 224. And that's 45, at 45 Cheltenham? A Yeah. Q 225. Okay. A Yeah. I have a suitcase from A to Z according to people's names. Q 226. Yeah. A And I keep in the each section. I'm very good at keep recording. … Q 292. Did you happen to receive this letter from Council? A I think I may have. I opened a letter and I looked at it and I thought, This is very invasive questions but I'm happy next time if you ever want to see me again, I'm happy to bring the suitcase with me, I show you, but as I say, I really - really don't have time and to go through each one because once you put in the writing, if I have to respond and I know I have to do a proper job and I spend a week to prepare that and I really don't have time. Q 293. Okay. A Yeah. So that's why and I feel, My God it's very - very invasive but next meeting, if you ever wish me to come again and I bring the suitcase with me and I show you my rental ledgers. Q 294. All right. MR TRINH Speak to Steve about that, yeah. …

[34]

Pan Pac submissions

Ms Wu admitted that she had not furnished the Council with the records requested by the Notice in Pan Pac's amended defence dated 4 April 2018. Ms Wu submitted on behalf of Pan Pac that because she operated a small business, her personal records and those of Pan Pac were inherently interlinked. She should not be required to provide her bank statements and tax records. She had offered to bring a suitcase containing the relevant records to another interview.
The Notice was not sufficiently specific to enable Ms Wu to provide the Council with the information requested. In particular, the Notice requested records from 2007-2016, without specifying months or days. Ms Wu submitted that it was unreasonable to have to provide records for a nine year period, as there is a common understanding that business records are kept for seven years. In her additional submissions Ms Wu referred to ss 119J and 121B and Sch 5 Pt 4 of the amended EPA Act in submitting that the Council was required to specify the manner in which the documents requested had to be provided and that it had failed to meet this requirement.
Ms Wu referred to ss 8A(2)(a)-(c) and (e) and 22(4) of the LG Act to argue that the Council is bound by all laws. Ms Wu submitted that the Council was therefore bound by the Privacy Act 1988 (Cth) and accordingly had to include a privacy notification in relation to any documents provided in response to the Notice. Such notifications were standard in relation to government requirements. The Council had failed to include such a notification. The Council had included a privacy notification on its DA form. Sections 1.3 and 1.5 and Pts 2 and 3 of the Australian Privacy Principles Fact Sheet 17 dated January 2014 were applicable. Ms Wu also referred to ss 8, 10, 11 and 12 of the Privacy and Personal Information Protection Act 1998 in support of her submission that the Council gave no explanation as to why the material had to be collected as required by those sections. Ms Wu also submitted that the Council had rejected her proposal to provide physical copies rather than soft copies of the documents at a later stage. Ms Wu also stated that the documents she was asked to produce were difficult to copy as they were faded.

[35]

Pan Pac guilty of Notice offence

Section 119J provides a statutory power to investigation officers to obtain information and records relevant to an investigation into a breach of the EPA Act. Section 119M(1) states that a person must not without reasonable excuse fail to comply with a requirement made of the person by an investigation officer in accordance with Div 1C. The Council established that Mr Ellis as a law enforcement officer exercised the responsibilities of an investigation officer. The Council did not have a position titled "investigation officer". The Council relied on Exhibit C being the job description of a law enforcement officer and the delegation to council officers annexed to Mr McClure's affidavit sworn 24 July 2017. The job description of a law enforcement officer stated one of the duties of that position was to "investigate matters referred to council and take steps to address or remediate those issues." The position description further stated that law enforcement officers were responsible for the "enforcement of legislation, codes and policies" and were to "[c]arry out development control and health functions in accordance with [c]ouncil policies and objectives with a particular emphasis on compliance with conditions of development consent…" The delegation stated that law enforcement officers were authorised officers under the EPA Act and had the power to issue fines, notices and orders under the EPA Act. The Council submitted that the duties of a law enforcement officer were therefore substantially identical to those of an investigation officer. The difference in name was immaterial and the matter should be viewed as one of substance over form.
The Council has established beyond reasonable doubt that a duly authorised officer issued the notice correctly and that no records were provided in the timeframe sought by the Notice, this being confirmed by the evidence of Mr McClure. On a strict application of the three elements of the offence identified in [108] guilt is established beyond reasonable doubt.
To respond to some of the submissions made on behalf of Pan Pac, the Notice stated its purpose at the outset namely to assist in the investigation of the use of the Property as a boarding house. The records sought were usual business records that the investigation officer could reasonably expect a business running a boarding house to hold. That such an activity was carried on at the Property was confirmed by the ROIs voluntarily attended by Ms Wu and from council officer inspections. The nature of the records kept by Ms Wu were identified in the ROI on 15 December 2016 as set out above at [110]. Ms Wu admitted to the council officers that she had the records.
I will assume Ms Wu's evidence and submissions are directed to establishing that she had a reasonable excuse in not providing the records sought by the Council. Pan Pac bears the legal onus of proving that a reasonable excuse exists for failing to comply with a notice on the balance of probabilities, see Council of the City of Sydney v Blue Chips Franchise Pty Ltd at [22].
Ms Wu on behalf of Pan Pac has not established on the balance of probabilities that Pan Pac had a reasonable excuse not to provide the records sought in the time stated in the Notice. That Ms Wu submitted that to properly respond to the Notice she would have to go through her records for each resident which would take her a week to do and that she did not have time to do this is insufficient evidence to establish reasonable excuse in circumstances where the Notice was not proven to be oppressive and burdensome.
Ms Wu's submission that the Notice was an invasion of privacy in the absence of a privacy notification as required under the Privacy Act (Cth) is legally incorrect. Section 10 of the Privacy and Personal Information Act 1988 (NSW) which specifies requirements for public sector agencies when collecting information has no application in the circumstances of a statutory notice issued by an authorised council officer performing law enforcement functions by virtue of s 23(3) of that Act.
That to fully comply with the Notice required Ms Wu in her view to supply her personal bank statements and tax returns does not arise from the terms of the Notice. That arises from how she chooses to conduct her personal affairs and those of Pan Pac. The request for company records in the Notice is reasonable.
Ms Wu's offer to provide the documents physically in a suitcase if council officers asked her to come back another day did not place an onus on the council officers to ask Ms Wu to return. The responsibility to comply with the notice rests with the recipient.
That Ms Wu considered the request was unethical is irrelevant.
The Council has established the elements of the Notice offence beyond reasonable doubt. Pan Pac is guilty of the Notice charge.
A sentencing hearing for the determination of an appropriate penalty will be necessary for all three charges. Appropriate orders for the future conduct of the matter will be made after discussion with the parties.
The Court finds as follows: 1. In matter no 17/67623 Pan Pac Investments Pty Ltd is found guilty of the offence as charged against s 125(1) of the Environmental Planning and Assessment Act 1979 being Statement of Charge 2. 2. In matter no 17/67624 Pan Pac Investments Pty Ltd is found guilty of the offence as charged against ss 119M and 125(1) of the Environmental Planning and Assessment Act 1979 being Statement of Charge 3. 3. In matter no 17/67625 Pan Pac Investments Pty Ltd is found guilty of the offence as charged against s 125(1) of the Environmental Planning and Assessment Act 1979 being Statement of Charge 4.

Burwood Council v Pan Pac Investments Pty Ltd

At a glance

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Judgment (36 paragraphs)

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Legislation Cited (2)

Cases Cited (7)

Cited By (2)