Council of the City of Sydney v Mae

Land and Environment Court (NSW)|2009-06-01|Before: Sheahan J, Mr J

CITATION : Council of the City of Sydney v Mae [2009] NSWLEC 84

APPLICANT Council of the City of Sydney PARTIES : RESPONDENT Garnet Alexander Mae

KEY ISSUES: INJUNCTIONS AND DECLARATIONS :- development works and use without appropriate consent - requirement for consent - boarding house use - chracterisation - development control plans - utility of declarations - discretion - costs

Ashfield Municipal Council v Australian College of Physical Education Ltd (1992) 76 LGRA 151 CASES CITED: Great Lakes Council v Lani (2007) 158 LGERA 1 South Sydney Municipal Council v James (1977) 35 LGRA 432 Warlam Pty Ltd v Marrickville Council [2009] NSWLEC 23

APPLICANT Mr J K Kirk SOLICITORS LEGAL REPRESENTATIVES: Council of the City of Sydney

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT Introduction 1 His Honour: Mr Mae owns a two-storey terrace house at 20 Belvoir Street, Surry Hills ("the premises") adjacent to a warehouse owned by the nearby Belvoir Street Theatre. 2 He does not live there, and complains that Council correspondence is addressed to him there, but it is the street address he provided to the Council on acquiring the premises in April/May 2004, and has been used by both parties since. (See title, transfer and rating record documents in Exhibit C1 at tabs 4, 5 and 6, and Mr Mae's letter at Exhibit C5 item 'O'). 3 Council seeks declarations and orders against him in respect of his development and use of the premises. When the hearing commenced on 1 June 2009 Council made a further insubstantial amendment to the formal wording of par 1 of its summons, as amended with Mr Mae's consent on 26 February 2009. 4 In its final form the amended summons seeks the following relief:

"1. A declaration that the Respondent failed to comply with the terms of an Order dated 2 September 2008 and served on the Respondent by the Applicant pursuant to Section 121B of the EPA Act (" the Section 121B Order "). 2. A declaration that the Respondent is unlawfully using (or, in the alternative, has been unlawfully using) the premises situated at and known as 20 Belvoir Street, Surry Hills (" the Premises ") for the purposes of a "boarding house" (" the said Purpose ") in contravention of the South Sydney LEP 1998 and s.76A(1) of the EPA Act. 3. A declaration that in contravention of s.76A(1) of the EPA Act the Respondent has unlawfully carried out the following building works on the Premises without first obtaining development consent ("the Unauthorised Building Works"), namely: (a) the erection of a two room structure at the rear of the Premises; (b) the erection of timber decking adjacent to the two room structure at the rear of the Premises; (c) the modification of rooms within the Premises, namely: I. the modification and alteration of the room immediately adjacent to the downstairs bathroom at the inside rear of the original terrace at the Premises by the removal and replacement of wall sheeting extending the size of the room to encroach on the original hallway space; II. the modification and alteration of the room immediately at the top of the first set of stairs to the upper level by the erection and installation of wall sheeting to reduce the size of the original room and create a hallway from the top of the stairs to the adjacent upstairs bathroom, together with the creation of a false ceiling the width of this hallway creating a storage shelf within the room adjacent to the hallway; III. the modification and alteration of the front room upstairs within the Premises by the addition and installation of wall sheeting to partition the original upstairs front room into two rooms; and IV. the modification and alteration of the middle room upstairs within the Premises by the: i. addition and installation of wall sheeting to reduce the size of the room to create a hallway providing a means of access to the adjacent room created by the works undertaken in (III) above; and ii. the removal of a section of wall sheeting and the installation of a second doorframe and door access into the middle room.

An Order restraining the Respondent (by himself or through his servants, contractors and/or agents) from using or permitting the use of the Premises for the said Purpose until development consent for such use is granted pursuant to the EPA Act and such consent is operative. 5. An order pursuant to Section 124(2)(b) of the EPA Act that within 28 days of the making of this order the Respondent remove all Unauthorised Building Works at the Premises. 6. An order restraining the Respondent (by himself or through his servants, contractors and/or agents): a) from advertising or holding out the Premises or any part of them as available for the said Purpose; and b) from leasing or licensing the Premises or any part of them for the said Purpose without first obtaining a development consent specifically authorising the said Purpose. 7. An order that the Respondent pay the Applicant's costs of these proceedings as agreed or assessed; and 8. Such further or other orders as this Honourable court deems fit." 5 Put shortly, Council claims that Mr Mae:

(i) is conducting a boarding house in the premises without the necessary development consent. (ii) has carried out significant structural alterations to the premises without consent. (iii) has ignored an emergency order issued to him on 3 September 2008 under s121B of the Environmental Planning and Assessment Act 1 979 ("EPA Act ") requiring removal of an external two-room structure at the rear of the premises, such structure being part of the unauthorised building works in par (ii), and having been severely damaged and left in a dangerous condition as a result of fire in August 2008. 6 All relief sought is clearly within the jurisdiction of this Court (EPA Act ss123 and 124; Land and Environment Court Act 1979 ss20-23). Mr Mae's position 7 Throughout the proceedings Mr Mae has represented himself. 8 On 22 February he indicated to the court that on 6 March he would consent to the orders sought. He later recanted, but he was in court (and his consent was noted by Pain J) on 27 March, when the hearing was appointed for 1 June 2009, and he was in court when that hearing date was confirmed, and his Notice of Motion to vacate it was dismissed, with costs, on 30 April 2009. 9 In his affidavit of 30 March 2009 in support of that Notice of Motion, read again in the substantive proceedings, he evinced an intention to attend the Cannes Film Festival, as a self-employed film-maker, from 13 to 23 May 2009, and to travel, following up various potential business leads, between the festival and a wedding commitment in Fiji on 18 July 2009. 10 When he failed to appear on 1 June, the court allowed Council to proceed in his absence on the basis that, despite Council's extensive objections to their admissibility and relevance, I would have regard to all the contents of all three of Mr Mae's affidavits, dated 30 March, 17 and 20 April 2009, yet insist upon Council's strict compliance with the Evidence Act 1995. I commend Counsel for the Council for not reading or tendering any evidence to which Mr Mae had expressed a substantive objection (such as a DVD filmed by a Council witness). The Council's evidence 11 Council relied on the affidavit evidence of: (a) Five Council officers: · Adrian Mihaila, Compliance Investigator · James Meem, Compliance Investigator · Clair Elek, Specialist Planner · Kirsten Morrin, Solicitor · Lesley Nash, Paralegal

(b) One former occupant of part of the premises: · Michael Dillon, printer (who resided there from 24 July 2008 to 24 January 2009). He gives evidence of the poor quality accommodation provided at/by the premises, such as (i) "very old and unclean" bathroom facilities, and (ii) lack of smoke detectors before the fire occurred (Mr Mae admits this lack in par 26 of his affidavit 17 April 2009).

(c) The current owner of the adjoining premises, 22 Belvoir Street: · Richard Baron, web designer (who purchased No.22 in May 2008). He gives evidence of adverse amenity impacts from the premises (noise, light, loss of privacy, rubbish and rats). 12 Council also relied on the following documentary evidence: Exhibit C1 - A bundle comprising relevant planning instruments and various other documents regarding the premises, including the Emergency s121B Order.

Exhibit C2 - South Sydney Development Control Plan 1999 - Exempt and Complying Development, adopted 23 February 2000. Exhibit C3 - A " letter of demand " sent by Council to Mr Mae on 30 September 2008 regarding his non-compliance with the s121B Order, and foreshadowing these proceedings and an application for a costs order against him.

Exhibit C4 - An email exchange between the parties regarding Council's notice to Mr Mae pursuant to s67 of the Evidence Act 1995 (which notice appears at tab 8 of Exhibit C1 ).

Exhibit C5 - A bundle of documents (including photographs) exhibited to Ms Elek's affidavit, duplicating some of the planning documents, and tracing the planning history of the premises. 13 The court is satisfied that Messrs Mihaila and Meem possess full inspectorial authorisation under the EPA Act, entitling them, on official business, to enter premises, take photographs, conduct investigations, and take enforcement action (see, e.g., annexure 'A' to Mihaila affidavit 8 May 2009). 14 While much of the information upon which Council relies was obtained in the course of its detailed investigation, much of its case against Mr Mae is even more soundly based upon the mixture of assertion and submission in his own affidavits. 15 A search of the Council's records shows that the most recently granted development consent was granted to a former owner of the premises on 12 August 1992 (see the DA at Exhibit C5, item 'H', and DC at 'K'), to establish darkrooms and conduct a photographic business as a home industry. Council thereafter rated the premises as "business". 16 Within twelve months of Mr Mae's becoming the owner of the premises he successfully applied to have it rated once again as "residential" (effective as from 9 March 2005). 17 In September 2006 Council received a complaint that the premises had been internally altered without approval to provide extra rooms which Mr Mae was advertising on a "Domain" website and then renting to others. A series of Council inspections followed. Mr Mae complains loudly about those inspections, but the evidence clearly establishes that they were carried out entirely as allowed by the relevant Division of the EPA Act (Division 1A of Part 6). No Council personnel entered the premises unless granted access by an "occupier", or pursuant to an inspection properly notified in advance as provided by the EPA Act. Mr Mae obviously does not know or understand what these provisions enable, as he simply asserts that entry should occur only when specifically authorised by him as owner. 18 On 4 March (or perhaps April) 2008 Council issued a Notice of Intention to give Mr Mae an Order to cease using the premises as a boarding house without consent. Such an order was never issued, after Mr Mae denied to Mr Meem, in a telephone discussion on 1 May 2008, that the premises were so used. 19 After the fire on 6 August 2008 (in which one occupant of the premises sustained burns), Council stepped up its investigation. Further visits were made and photographs taken. The Emergency Order was issued on 3 September 2008 (Exhibit C1, tab 7), requiring demolition of the unauthorised structure in the rear yard, which had been damaged by the fire. 20 Instead of demolishing the two rooms, Mr Mae quickly rebuilt them, and again advertised them for rent. In pars 7-8 of his affidavit of 17 April 2009 he says: "I accept that I did not comply with the terms of Council's order … I chose to rebuild them". That admission is repeated in par 3 of his affidavit 20 April 2009. 21 These proceedings were commenced on 15 October 2008, but advertising and letting continued. 22 The photographs taken at various times show very low quality accommodation, and unsafe structural features such as an abnormally narrow corridor, a damaged stairway balustrade, and a very low ceiling in one communal area. The police fire report (annexure 'M' to Mr Mihaila's affidavit of 16 February 2008, see p4) expressed serious concerns about the state and safety of the premises, in terms of alarms, site constraints, and inaccessible doors. The Planning Instruments 23 The relevant planning instrument is South Sydney Local Environmental Plan 1998 (as amended - "the LEP" - Exhibit C1, tab 1). Pursuant to cl 5 and Schedule 1 (fol 47) the LEP defines "boarding house" as meaning "a building wholly or partly let in lodgings which provides lodgers with a principal place of residence, but does not include a backpackers' hostel, bed and breakfast, serviced apartment, private hotel, hotel or motel". In par 4 of his affidavit of 20 April 2009 Mr Mae admits that if the court accepts this as the appropriate definition of "boarding house" he has been "unlawfully using the premises as a boarding house". 24 Clause 10A (at fol 9) provides that the South Sydney Development Control Plan 1999 - Exempt and Complying Development ("the 1999 DCP" - Exhibit C2), will list various types of development as "exempt" or "complying", and set out development standards and conditions with which such development must comply. 25 The premises are located in Mixed Uses Zone 10 (fol 20 of the LEP). Its objectives are set out in cl 21(1). Clause 21(2) provides that cl 10A exempt development does not require a development consent, but cl 21(3) provides that a development consent is required for various listed uses (not specifically including boarding houses) and "any other development not included in sub clause (2)". 26 The City also has a City of Sydney Boarding Houses Development Control Plan 2004 ("the Boarding Houses DCP 2004" - Exhibit C1, tab 3), which (fol 317) "aims to encourage the increased provision of quality Boarding Houses and to achieve improved standards of accommodation when existing buildings are to be adapted or converted to a boarding house …". It addresses Building Code of Australia issues regarding boarding houses (see fol 323-4), and their safety implications and requirements, as well as design standards (see fol 331). (The premises in this matter would be a Class 1b boarding house under this DCP). 27 The 1999 DCP (Exhibit C2) makes the following provisions relevant to Mr Mae's contention that he does not need consents because his works cause no harm or risk. Schedule 1, under "Exempt Development", among a series of "minor building works and internal alterations to dwelling houses and residential flat buildings", provides that: "under no circumstances includes changes to the configuration of rooms…". Schedule 2, under "Complying Development", limits rear additions by defining levels, areas, and separation distances. The Declaratory Relief Sought

Should the court make a declaration about Mr Mae's admitted non-compliance with Council's s121B Order? 28 Mr Mae clearly admits he ignored the Order; indeed he boasts (in par 24 of his affidavit 20 April 2009) that "until recently I have generally ignored all contact with Syndey (sic) Council". 29 The court should make declarations only where some proper and practical purpose is served (see Great Lakes Council v Lani (2007) 158 LGERA 1, per Preston ChJ at [16]-[25]), and I accept Council's submissions that a declaration regarding Mr Mae's non-compliance serves the public interest in ensuring compliance with such orders by members of the community. 30 The declaration sought in par 1 of the Amended Summons should be made. Are the premises being used as a boarding house? 31 The premises were regarded as, and are still rated as, a two-three-bedroom single residential dwelling, with development approval to conduct in two small darkrooms within it a photographic facility as a home industry. The Council's garbage arrangements are limited to those applicable to a residence occupied by a single family group. 32 The premises currently have nine bedrooms, two bathrooms, a kitchen and some other shared facilities. A washing machine has been set up in the rear yard near where the unauthorised two-room structure has been built - and, after the fire, rebuilt - to provide two of the nine bedrooms. 33 Mr Mae advertises rooms for rent on the internet. He alone selects his occupants, individually, from among the resultant applicants, and he enters written agreements with them. 34 Occupants are generally individuals, and not related (see admission by Mr Mae in par 24 of his affidavit 17 April 2009). They pay rents (including $20 per week expenses), apparently ranging between $120 and $170 per week, provide bonds in sums between $300 and $360, and commit to a minimum term of six weeks. It appears most residents stay for only short periods, possibly an average of three months. While there, the premises provide their "principal place of residence", rather than overnight accommodation. A lockable bedroom, a front door key, and access to the bathrooms, kitchen and other shared facilities (cable TV, internet) are provided, but no meals are served, and no cleaning services provided. Mr Mae accesses the premises at will. 35 Council relies on oral evidence given to its investigators by various residents at various times. The court has the benefit of Mr Dillon's affidavit, but, in addition, granted Council leave to rely on some hearsay evidence of others, given the expense, delay and impracticality involved in having all these former residents brought to court - by the nature of the accommodation provided, many occupants are short-term and itinerant, and hard to trace later, many being overseas students holidaying in Australia. The Council's evidence shows strenuous efforts to obtain affidavits from, and perhaps secure personal attendance by, persons such as Edmund Chan, Hamish Munro, Christophe Plos, Kasper Kommeren, and Kazuki Wakabayashi, and the court is happy to accept what they said when interviewed by Council investigators. (Evidence Act ss 64, 67). At the same time, as a result of his non-appearance, Mr Mae was not put to strict proof of the various conversations to which he deposes, and the court has had regard to his evidence regarding them. 36 In any event, Mr Mae's own evidence basically confirms the evidence of the former occupants, but Mr Mae denies that such an operation constitutes a boarding house, and he relies on dictionaries and information he says he obtained from the Department of Fair Trading. 37 The clear effect of the planning instruments is that a use properly characterised as a "boarding house" - as defined by the relevant instrument, rather than by a dictionary, or a conversation with an unidentified officer of the department administering the tenancy legislation - is permissible, but only with development consent. In deciding whether to grant its consent, the Council would have regard to the two relevant DCPs. 38 There is no evidence at all that there has been any consent for use of the subject premises as a boarding house. 39 I have concluded that Mr Mae's conduct of the premises is indeed as a "boarding house". See Ashfield Municipal Council v Australian College of Physical Education Ltd (1992) 76 LGRA 151, per Pearlman J at 152-155; South Sydney Municipal Council v James (1977) 35 LGRA 432, per Reynolds JA. There is no justification for the court to have recourse to any dictionary to supplement or otherwise construe the LEP definition. See Warlam Pty Ltd v Marrickville Council [2009] NSWLEC 23, per Biscoe J at [23]-[29]. 40 The second declaration sought should be made. The post-1992 building works 41 The building works done to/on the premises since Council granted its "darkroom" consent in 1992 comprise (1) the so-called "Treehouse", the two-room building constructed in the rear yard, immediately abutting neighbouring properties and sitting on the "dunny" lane (as admitted by Mr Mae in par 17 of his affidavit 17 April 2009), and (2) the major rearrangement of internal spaces. None of these works were approved by Council and Mr Mae so admits in pars 25-26 of his affidavit 17 April 2009 and par 25 of his affidavit 20 April 2009. 42 The effect of these extensive unauthorised building works (only one wall of which Mr Mae says, in par 31 of his affidavit 20 April 2009, that he did not build) has been to convert a 2-3 bedroom home into a nine-bedroom "share accommodation" facility, which Council says, and I have accepted, is at law a boarding house (see annexure 'I' to Mr Mihaila's affidavit 16 February 2009, and compare the plan in item 'H' of Exhibit C5). The front room downstairs (shown as office/lounge in 1992) and the two darkrooms approved in 1992, have been converted to bedrooms, the 1992 bedrooms have been reconfigured, and the "Treehouse" containing two bedrooms has been constructed, with the overall result that there are now five bedrooms downstairs and four upstairs. 43 These works clearly do not satisfy the "exempt" or "complying" provisions of the instruments, and, therefore, they also required Council consent. Mr Mae says he did or supervised most of the unapproved work himself. He advances no owner-builder permit, nor evidence of appropriate skills or qualifications. There was no inspection. He simply contends that his works do not interfere with the neighbours (pars 9-12 of his affidavit 17 April 2009), and he believes that acceptance of his application to have the premises rated on a residential basis entitles him to think that Council has approved the works. 44 The third declaration sought should also be made. Coercive orders and discretion 45 The injunctive relief sought in pars 4, 5 and 6 of the amended summons should also be granted. 46 There are serious health and safety issues, apart from amenity issues, associated with the illegal works and unauthorised use of the premises. Those issues justify the court having given this application by the Council urgent attention, and now granting all the relief sought. 47 In all the rhetoric placed before the court in his three affidavits Mr Mae makes out no grounds whatever for the court to exercise its discretion in his favour. 48 On the contrary, Mr Mae merely attacks the Council's witnesses, rather than address their evidence. His personal invective against them does him no credit, and he has failed overall to address the implications of their evidence for his premises, and for himself personally. 49 He asserts rights and immunities unknown to the law, and complains of "harassment" by an "unprofessional" Council, acting "inappropriately". None of his assertions are supported in any way by the evidence. Costs 50 The Council having been entirely successful, the costs of the proceedings should "follow the event". Its submissions (pars 57-58) make a strong case for the usual party-party order, and foreshadow, on the basis of the available evidence, possible success in obtaining an order for its costs to be paid on an indemnity basis. I will make the party-party order at this time, and allow time for Council to prepare and pursue a case for an indemnity order should it so decide. Other orders 51 There are in the circumstances of this case grounds for concern that the Council may have further difficulty in respect of these premises. I will accordingly grant Council "liberty to apply".

Orders 52 The court, therefore, makes the following declarations and orders:

A declaration that the Respondent failed to comply with the terms of an Order dated 2 September 2008 and served on the Respondent by the Applicant pursuant to Section 121B of the EPA Act ("the Section 121B Order"). 2. A declaration that the Respondent is unlawfully using (or, in the alternative, has been unlawfully using) the premises situated at and known as 20 Belvoir Street, Surry Hills ("the Premises") for the purposes of a "boarding house" ("the said Purpose") in contravention of the South Sydney LEP 1998 and s.76A(1) of the EPA Act. 3. A declaration that in contravention of s.76A(1) of the EPA Act the Respondent has unlawfully carried out the following building works on the Premises without first obtaining development consent ("the Unauthorised Building Works"), namely: (a) the erection of a two room structure at the rear of the Premises; (b) the erection of timber decking adjacent to the two room structure at the rear of the Premises; (c) the modification of rooms within the Premises, namely: I. the modification and alteration of the room immediately adjacent to the downstairs bathroom at the inside rear of the original terrace at the Premises by the removal and replacement of wall sheeting extending the size of the room to encroach on the original hallway space; II. the modification and alteration of the room immediately at the top of the first set of stairs to the upper level by the erection and installation of wall sheeting to reduce the size of the original room and create a hallway from the top of the stairs to the adjacent upstairs bathroom, together with the creation of a false ceiling the width of this hallway creating a storage shelf within the room adjacent to the hallway; III. the modification and alteration of the front room upstairs within the Premises by the addition and installation of wall sheeting to partition the original upstairs front room into two rooms; and IV. the modification and alteration of the middle room upstairs within the Premises by the: i. addition and installation of wall sheeting to reduce the size of the room to create a hallway providing a means of access to the adjacent room created by the works undertaken in (III) above; and ii. the removal of a section of wall sheeting and the installation of a second doorframe and door access into the middle room. 4. An Order restraining the Respondent (by himself or through his servants, contractors and/or agents) from using or permitting the use of the Premises for the said Purpose until development consent for such use is granted pursuant to the EPA Act and such consent is operative. 5. An order pursuant to Section 124(2)(b) of the EPA Act that within 28 days of the making of this order the Respondent remove all Unauthorised Building Works at the Premises. 6. An order restraining the Respondent (by himself or through his servants, contractors and/or agents): a) from advertising or holding out the Premises or any part of them as available for the said Purpose; and b) from leasing or licensing the Premises or any part of them for the said Purpose without first obtaining a development consent specifically authorising the said Purpose. 7. The Respondent is ordered to pay the Applicant's costs. Such costs are to be paid on a party-party basis subject to leave being hereby granted to the Applicant to bring within twenty-one days a Notice of Motion seeking an order for its costs to be paid on a higher basis. The final amount is to be determined by agreement between the parties, or assessment according to law. 8. The Applicant shall have liberty to apply on 72 hours notice. 9. All the exhibits may be returned.

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