Holroyd City Council v Khoury

Land and Environment Court (NSW)|2015-02-12|Before: Pain J

Solicitors: Matthews Folbigg Pty Ltd (Applicant) File Number(s): 40945 of 2014

EX TEMPORE Judgment

Holroyd City Council (the Council) has filed a summons which seeks two declarations of carrying out prohibited work or work requiring development consent without that consent pursuant to s 76A and s 76B of the Environmental Planning and Assessment Act 1979 (EPA Act) at 36 Frances Street South Wentworthville (the premises) reflecting changes in the planning instruments applying to boarding houses before and after 5 August 2013 in the Holroyd local government area. The premises are owned by the Respondent Mr Khoury. A consequential order for removal of all structures erected on the land not in conformity with consent 2003/1068 is also sought. That 2003 development consent allows a dual occupancy on the premises in accordance with approved plans.
An order is also sought that the current boarding house use of the premises by Mr Khoury cease within 14 days. This will result in nine or ten people having to leave the premises according to Mr Khoury's evidence. A letter giving notice of these court proceedings and their possible consequences as provided for under s 121G of the EPA Act was hand delivered to occupants or left under their doors at the premises on 4 December 2014 by the council officer Mr Ferguson as ordered by this Court on 27 November 2014.

Council's evidence

The Council relied on a number of affidavits. In particular there were three affidavits of Mr Bradley Ferguson, who is the Council's development compliance officer, and I will briefly summarise these.
The first was sworn on 12 November 2014 and has been read in full. That identifies Mr Ferguson's current role at the Council as a development compliance officer, and identifies his duties and functions under various pieces of legislation, most notably for today the EPA Act. He has been involved in relation to these premises for some time. Most relevantly for the history before me today he attests to an inspection of the premises on 24 April 2013 and various conversations with occupants of the premises at par 19 through to 27 of that affidavit. He attests to attending at the premises again on 23 May 2013, when he also had the opportunity to talk to some occupants, as attested to at par 37 to 40 of that affidavit. He also attests to being aware of and participating in a Class 1 appeal in this Court in relation to an order issued by the Council pursuant to s 121B of the EPA Act, to which matter I will return in due course.
Mr Ferguson refers to an inspection of the premises on 24 February 2014 when he was able to speak to an occupant at the premises as attested to at par 51 and 52. A further inspection was carried out by him in company with other officers of the Council and police officers on 30 May 2014, and he had the opportunity once again to talk to occupants as attested to in conversations set out in par 62 to 65 and at 72 to 79. I will refer to these conversations later.
The further affidavit sworn by Mr Ferguson dated 26 November 2014 read by the Council attests to his attendance at the premises on 20 November 2014 for the purpose of serving court documents relating to these proceedings being the summons, points of claim and other supporting documents. I do not need to spend more time on that affidavit for current purposes.
An affidavit of 28 January 2015 sworn by Mr Ferguson was read which related to the service of court orders. It also attests to the delivery of court ordered notices under s 121G of the EPA Act upon the occupants either personally or by leaving it under their doors on 4 December 2014.
Further affidavits relied on include two affidavits of Mr Hallab, senior council development compliance officer. One affidavit dated 12 November 2014 attests to his duties under the EPA Act amongst others. He also attests to attending at the premises together with Mr Ferguson on 24 April 2013 and identifies what he saw on that occasion. Similarly in relation to an inspection on 30 May 2014. I do not need to further summarise that for current purposes.
His next affidavit also read by the Council dated 26 November 2014 attests to attending the premises on 20 November 2014 with Mr Ferguson. I do not need to further summarise that for current purposes.
An affidavit of Mr Alameh dated 12 November 2014 was also read. He is a development compliance officer with the Council. He attended at the premises and took photographs on the occasions already referred to in the evidence on 24 April 2013 and the inspection on 23 May 2013. He conversed with at least two occupants of the premises on that day and possibly three as set out in his affidavit at par 9 to 12. He also attended the premises on 30 May 2014 with other council officers.
An affidavit of Mr Stephenson, Council's town planner, dated 12 November 2014 was read. Mr Stephenson sets out at par 11 the Council's records in relation to the property, which identifies some of the notices issued in relation to it. Most relevantly for today he usefully sets out from par 12 to the end of the affidavit at par 46 the statutory context which relates to a boarding house use at the premises, firstly under the Holroyd Local Environmental Plan 1991 (LEP 1991) and, secondly, under the State Environmental Planning Policy (Affordable Rental Housing) 2009 (Affordable Housing SEPP) now in force, and the provisions of the new Holroyd Local Environmental Plan 2013 (LEP 2013). Mr Stephenson sets out the definition in all of those instruments, or relevant definitions as they apply in those instruments.
Additional affidavits relied on by the Council included one sworn by Mr Halstead, a building surveyor and certifier, on 11 November 2014. As part of the Council's evidence a bundle of documents was tendered and marked as exhibit HC-1, which were collectively the documents referred to in all the Council's affidavits. I mention that particularly in relation to Mr Halstead because as a result of a visit to the premises on 30 May 2013 he prepared a report on the fire safety position as he saw it of the premises which is tab 46 in HC-1. Mr Halstead identifies his qualifications as a certifier and fire safety risk assessor and his extensive experience in that area in his affidavit.
An affidavit of Mr Fedele, building consultant and designer, sworn 14 November 2014 was read by the Council. He also attests to his specialised knowledge in relation to the preparation of designs and plans. He also attended the premises on 30 May 2014 with Mr Halstead and other officers, took measurements and measured up the executed works in order to prepare the works as executed plans included in HC-1 at tab 46.
Mr Halstead was cross-examined by Mr Khoury about fire safety measures which Mr Khoury has stated in oral evidence that he installed at his premises in November and December 2014. There was some limited cross-examination of Mr Fedele and Mr Ferguson by Mr Khoury. I do not need to summarise this. The Council's counsel also briefly cross-examined Mr Khoury about the work he undertook in November and December 2014 installing sprinklers and three fire hose reels at the premises.

Mr Khoury's evidence

Mr Khoury gave oral evidence stating that he installed fire prevention measures at the premises being the installation of 41 fire sprinklers and three fire hoses in November and December 2014 in different parts of the building. Photographs in exhibits 4-11 and 13 taken by Mr Khoury on 9 February 2015 purport to show this work. The approximate locations of these photographs were identified by Mr Khoury on plans which became exhibit 3. These plans were drawn by Mr Fedele, design engineer called by the Council, following his inspection of the property on 30 May 2014 where he took measurements of the various rooms. Photograph 2 is of a fire hydrant close to the premises on Frances Street. Mr Khoury stated these works were done voluntarily by him and he designed and constructed the sprinkler system. He says he is qualified to do this work as a licensed plumber and that his primary concern was and is the safety of residents. He has had smoke alarms installed at the premises for many years and has always had fire extinguishers there.
There is a lengthy and contested history between the parties. For current purposes the facts identified at par 5-12 of the Council's written submissions confirmed by the affidavits of the council officers identify that an inspection of the premises in April 2013 by Mr Ferguson suggested the premises were being used unlawfully as a boarding house. A s 121B order restraining that use was issued under the EPA Act and was appealed to this Court by Mr Khoury. In Khoury v Holroyd City Council [2013] NSWLEC 1236 a Commissioner of the Court on 11 December 2013 upheld the s 121B order with variation of the time for compliance. An order was made that Mr Khoury cease use of the premises as an unauthorised boarding house within 60 days of service of that order, compliance with which expired on 17 February 2014. The evidence before me suggests that order was not complied with, a serious matter. As the Council submitted, given that the use of the premises has apparently continued unchanged since that date there is no basis on which I would depart from the Commissioner's finding that the use of the premises was as a boarding house. I agree but will briefly canvas the parties' arguments below.

Use of premises is and was a boarding house use

Mr Khoury disputes that his use of the property is as a boarding house on the basis that the building is his home and the home of the occupants who are tenants. He referred to the definition of shared housing under tenancy law as identified in an extract of the Law Handbook handed up to the Court. He also sought to rely on a notice from the Consumer, Trader and Tenancy Tribunal (CTTT) referring to an occupant of the premises as a tenant. As identified to him during the hearing this matter requires the application of planning law not tenancy law and the definition of shared housing or the notice issued by the CTTT cannot assist me in construing the planning instruments as they refer to boarding houses.
Mr Stephenson, Council's town planner, identifies the relevant instruments which have applied to the premises in relation to the regulation of boarding houses. Before 5 August 2013 the relevant LEP prohibited boarding houses. After 5 August 2013 when a new LEP was passed such development is permissible with consent in low density residential areas by virtue of the operation of the Affordable Housing SEPP. The definition of boarding house in the LEP in force up to August 2013 and in the standard instrument applying in the Affordable Housing SEPP from August 2013 applies to the use of the premises as identified in the evidence from at least April 2013.
The evidence of Mr Ferguson and Mr Alameh in the affidavits attests to conversations with occupiers of some of the ten separate areas available for occupation at the premises during several inspections on 24 April 2013, 23 May 2013, 24 February 2014 and 30 May 2014 which identifies the nature of the occupants' use of the premises. The conversations with various occupants confirm they pay rent to Mr Khoury to occupy rooms in his house and are generally there for three months or more. All use common ingress and egress areas. There is at least one common area which includes a drier. Such a use satisfies the definitions of boarding house referred to in the instruments identified in Mr Stephenson's affidavit. I note that it is not a requirement of all the definitions of boarding house that there be shared areas and/or facilities in order to satisfy the definition of boarding house. Clause 1.4 of the LEP 2013 states that a boarding house may, not must, have shared facilities (which exist in any event).
The test of whether premises are being used as a boarding house is not whether an occupant is master of his or her own rented area contrary to Mr Khoury's submission to that effect. Mr Khoury cannot point to any other relevant definition in the planning instruments which applies to his present use of the premises. Manor house is not a recognised term in the planning instruments referred to by Mr Stephenson as far as I am aware.

Fire risk at the premises

The Council brings evidence before the Court from Mr Halstead accredited certifier and fire risk assessment expert including in the application of the relevant Australian fire safety standards in residential buildings. Mr Halstead has prepared a report on the levels of fire safety risk he considers in his expert opinion applied to the building on the premises as he saw it on 30 May 2014 (HC-1 tab 46). He identifies nineteen areas of concern in relation to compliance with the relevant Australian standards for fire safety and of these eight are rated as of high risk and five of medium to high risk. While parts of his report were criticised by Mr Khoury from the bar table as inaccurate he was not cross-examined on these matters. I accept the whole of his report as an independent expert before the Court. His report suggests there are major fire safety concerns with the current structure of, and some materials used in, parts of the building.
He did not agree with Mr Khoury that the sprinkler system or fire hose reels installed by Mr Khoury mitigated these risks not least because he had not inspected them and he was not aware of any of the necessary certification being provided by Mr Khoury to the Council.
The Council was not given notice that these works had been constructed before Mr Khoury's evidence at the hearing, they have not been certified by an appropriately qualified expert and have not been inspected by any of the Council's officers.
I consider a substantial fire safety risk exists at the premises.

Exercise of discretion

Warringah Council v Sedevcic (1987) 10 NSWLR 335 identifies the broad discretion available to the Court in matters of enforcement of public law and emphasises the importance of upholding such laws, here orderly and safe development as envisaged by the EPA Act. The evidence before me is overwhelming that I should exercise my discretion to make at least two of the declarations sought and the consequential orders sought in some form.
Mr Khoury submits that he has always acted in good faith and with the safety of the occupants of paramount importance but these submissions can have little weight given the history of conflict with Mr Khoury outlined in the Council's evidence, the lengthy period of unlawful use as a boarding house and the fire safety risks identified in the evidence. Mr Khoury has gained substantial private benefit through the rent he has received for an extended period for an unlawful use of the premises.
Declarations one and two sought in the summons with appropriate dates inserted to reflect the changes in the applicable planning instruments in August 2013 should be made. The declaration in prayer 3 is not necessary. In relation to orders restraining the boarding house use, an appropriate order should be made which requires further discussion to ensure that enforcement can be achieved.
I realise that requiring the boarding house use to cease will require numerous occupants to find other accommodation. Notices containing relevant information referred to in s 121G of the EPA Act advising of the consequences of these proceedings have been given to the occupants by the Council on 4 December 2014. Given the fire risk I have found to exist an order requiring vacation within 14 days of service of the Court's orders will be made.
That there are differences between the existing building and the approved 2003 consent plans is clear from a table exhibited to the affidavit of Mr Stephenson sworn 12 November 2014 (HC-1 tab 42). This identifies the large number of differences between the approved plans and what has been constructed according to the works as executed plans drawn up by Mr Fedele. The precise scope of building works that the Council seeks to have demolished needs to be clarified before any order to that effect can be made. The order for demolition in the summons as presently drafted is too broad and imprecise.

Orders

The Court makes the following declarations and orders. The Court declares that: 1. The Respondent has, by himself, his servants and agents, carried out development, or caused or permitted the carrying out of development on 36 Frances Street, South Wentworthville, being development which was prohibited under the provisions of an environmental planning instrument which applied to 36 Frances Street, South Wentworthville, contrary to Section 76B(a) of the Environmental Planning and Assessment Act 1979 up to 5 August 2013. 2. The Respondent has, by himself, his servants and agents, carried out development, or caused or permitted the carrying out of development on 36 Frances Street, South Wentworthville, being development which required development consent under the provisions of an environmental planning instrument which applied to 36 Frances Street, South Wentworthville, without development consent first being obtained, contrary to Section 76A(1)(a) of the Environmental Planning and Assessment Act 1979, on or after 5 August 2013. The Court orders that: 1. Within 14 days of the service of this order, the Respondent, by himself, his servants and agents cease the use of the building at 36 Frances Street, South Wentworthville as a boarding house. 2. The Applicant is to give notice to the occupants of the premises located at 36 Frances Street, South Wentworthville of the orders made in these proceedings. 3. he notice referred to in Order 2 must be given by 5:00pm on Monday 16 February 2015 either by being delivered personally to each occupant or left on or under the door of each occupancy at 36 Frances Street, South Wentworthville. 4. The Respondent is to not inhibit or restrain in anyway the Applicant executing Orders 2 and 3. 5. The Respondent must pay the Applicant's costs. 6. The Applicant is to provide the Court with Short Minutes giving effect to Orders 5 and 6 sought in the Summons by 6 March 2015.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 February 2015

At a glance

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Judgment (9 paragraphs)

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