Khoury v Holroyd City Council [2013] NSWLEC 1236 | Case summary

Land and Environment Court (NSW)|2013-11-21

Background and the council's contentions 39In October 2003, Holroyd City Council granted 'deferred commencement' consent to the proposed development of the 'erection of a part single and part two-storey attached dual occupancy' on Lot 24, DP 26984, 36 Francis Street, South Wentworthville, and owned by Mr Khoury. The consent was not to operate until a number of conditions were satisfied. 40Material in exhibit 2 indicates that a number of orders were issued to Mr Khoury in relation to irregularities associated with the development consent. Failure to comply with one of those orders resulted in a conviction for failing to comply with the terms of a s 121B order. [Exhibit 4 is a detailed chronology of council's dealings with the applicant.] 41The respondent's amended Statement of Facts and Contentions details the actions taken by the council in response to a complaint that the applicant's premises was being used as a boarding house. A search warrant was sought and approved by the Registrar of Parramatta Local Court and on 24 April 2013, council officers and members of the NSW Police Force carried out the terms of the warrant and inspected the premises. The warrant permitted the taking of a video and photographs of any relevant aspects of the inside of the premises. 42On the basis of the observations made during the inspection on 24 April, the council formed the view that the applicant was using the premises as a boarding house, a use for which consent was required. A search of council's records found that no development consent for the use of the premises as a boarding house had been granted. 43On 7 May 2013, in accordance with s 121H of the Act, the council issued a Notice of Intent (NOI) to give an order to cease the use of the premises as a boarding house by 21 May 2013. 44On 23 May, the council reinspected the premises and spoke to four occupants. As a result, the council determined that the applicant had not complied with the NOI. On that day, the order the subject of this appeal was served on the applicant. 45On 21 July (presumably 2013 not 2012), the council searched the Boarding House Register maintained by the Department of Fair Trading and found that the premises was registered with the department as a boarding house and in accordance with the Boarding Houses Act 2012 (the BH Act). 46The council's contentions as summarised are that: (1)The applicant has carried out development, being use of the premises as a boarding house, without council consent, in circumstances where consent is required. (2)The appeal should be dismissed due to this unlawful use. (3)The applicant has not complied with the terms of the order. (4)In the alternative, apart from (1), the applicant has (b) used the premises as a residential flat building - a prohibited development, and or has (c) carried out development such that the internal layout does not comply with various clauses of the BCA and is unsafe for habitation as a residential dwelling. (5)The council has not been provided with (a) a plan of the internal layout of the premises to enable particularised works to be carried out to provide for the safety of tenants and which may allow for some tenants to remain while the works are being undertaken; and (b) a Statement of facts and Contentions in Reply.

The assessment framework 47In determining an appeal made pursuant to s 121ZK of the Act, s 121ZK(4) gives the Court the discretion to: (a) revoke the order, or (b) modify the order, or (c) substitute the order for any other order that the person who gave the order could have made, or (d) find that the order is sufficiently complied with, or (e) make such order with respect to compliance with the order as the Court thinks fit, or (f) make any other order with respect to the order as the Court thinks fit. 48In general terms, an order made under s 121B(1) is an order to cease using premises for a purpose specified in the order in the circumstances that (a) the premises are being used for a purpose that is prohibited, or (b) the premises are being used for a purpose for which development consent is required but has not been obtained, or (c) the premises are being used in contravention of the conditions of a development consent. The order is made to the owner of the premises or a person by whom the premises are being used for the purpose specified in the order. 49At the date of the issuing of the order and the date of failure to comply, the environmental planning instrument in force was Holroyd Local Environmental Plan 1991 (HLEP 1991). HLEP 1991 was repealed on 5 August 2013 and replaced with Holroyd Local Environmental Plan 2013 (HLEP 2013). 50In HLEP 1991, the site was zoned Zone No 2(a) - Residential A Zone and boarding houses were prohibited in that zone as were residential flat buildings other than medium density housing. 51In HLEP 2013, the site is zoned R2 Low Density Residential. Boarding houses are permitted with consent. Residential flat buildings are prohibited. 52Clause 28 of State Environmental Policy (Affordable Rental Housing) 2009 (the SEPP) states that new generation boarding houses are permissible in R2 low density residential zones in locations that are accessible by being close to public transport. The SEPP prevails to the extent of any inconsistency between an LEP and a SEPP. 53The SEPP does not contain a definition of boarding house but refers to the relevant standard instrument, in this case Standard Instrument (Local Environmental Plans) Order 2006 (the Instrument). This Instrument defines a "boarding house" as: Boarding house means a building that: (a) is wholly or partly let in lodgings, and (b) that provides lodgers with a principal place of residence for 3 months or more, and (c) that generally has shared facilities, such as a communal bathroom, kitchen or laundry, and (d) that has rooms that accommodate one or more lodgers, but does not include backpackers' accommodation, a serviced apartment, seniors housing or hotel accommodation. 54The Definition in HLEP 2013 is essentially the same however clause (d) states: (d) has rooms, some or all of which may have private kitchen and bathroom facilities, that accommodate one or more lodgers. 55The BH Act defines "boarding premises" as: Boarding premises means premises (or a complex of premises) that: (a) are wholly or partly a boarding house, rooming or common lodging house, hostel or let in lodgings, and (b) provide boarders or lodgers with a principal place of residence, and (c) may have shared facilities (such as communal living room, bathroom, kitchen, or laundry) or services that are provided to boarders or lodgers on behalf of the proprietor, or both, and (d) have rooms (some or all of which may have private kitchen and bathroom facilities) that accommodate one or more boarders or lodgers. 56Section 9 of the BH Act deals with the requirements of boarding houses to be registered with the Department of Fair Trading. 57BCA Part A3 - Classification of Buildings and Structures is relevant. Class 1(b) includes a boarding house, guest house, hostel or the like with a total area not exceeding 300 m2 and in which not more than 12 persons would ordinarily be resident. Class 2 is a building containing 2 or more sole-occupancy units each being a separate dwelling. Class 3 is a residential building, other than a class 1 or 2 building which is a common place of long-term or transient living for a number of unrelated persons including amongst other types of accommodation, a boarding house.

The evidence 58The applicant provided no evidence. The evidence tendered by the respondent is uncontested. 59The following affidavits were read, all dated 23 October 2013:

Mr Bradley Ferguson - Development Compliance Officer, Holroyd City Council;
Mr Anthony McDermott - Senior Building Surveyor, Holroyd City Council;
Mr Joe Guido - Building Surveyor, Holroyd City Council; and
Mr Mark Stephenson - Senior Development Planner, Holroyd City Council. 60The affidavits all refer to documents tendered in Exhibits 2 and 3 in the proceedings. Mr Ferguson was the principal council officer who executed the search warrant for the inspection of the premises on 24 April 2013. Amongst other things, Mr Ferguson interviewed the occupiers of the premises and prepared a risk assessment and risk report regarding the BCA non-compliant elements of the premises. Mr Ferguson also interviewed residents on 23 May. Mr Ferguson's affidavit contains a detailed record of the inspection and interviews. 61Representative diagrams of the internal layout of the premises show 10 units across three levels. The diagram indicates doorways with no access, lightweight frame walls and masonry walls. Mr Guido, council's Building Surveyor measured to internal area of the premises to be 479.74m2. 62The units are configured as follows (rooms not labelled are assumed to be bedrooms) - the presence of a doorway with no access or light weight framing is indicated: Ground floor:
Unit 1 - bedroom, kitchen/living, bathroom; doorway no access;
Unit 8 - bedroom/kitchen/living, bathroom; doorway no access;
Unit 9 - two bedrooms, kitchen/living, bathroom; doorway no access, lightweight framing;
Unit 10 - bedroom, kitchen/living, bathroom; doorway no access;
Common area; doorway no access; lightweight framing. First floor
Unit 2 - assumed two bedrooms, kitchen/living, bathroom; doorway no access, lightweight framing;
Unit 3 - assumed bedroom/living/kitchen, bathroom; doorway no access, lightweight framing;
Unit 4 - assumed bedroom/living/kitchen, bathroom; lightweight framing;
Unit 5 - small with separate bathroom; doorway no access, lightweight framing;
Unit 6 - assumed bedroom/kitchen/living, bathroom; doorway no access, lightweight framing;
Audio Visual Room; doorway no access Second floor
Unit 7 - bedroom, kitchen/living, bathroom; doorway no access, lightweight framing;
Second floor lookout; doorway no access, lightweight framing; 63Exhibit 2 in the proceedings (Exhibit HC-1) includes a detailed 'BCA Defects Table' for the premises. The table identifies parts of the BCA where non-compliance creates risk to the health and safety of any person residing in or visiting the premises. 64The relevant sections of the BCA are given along with the relevant objectives and performance criteria and the solutions where the building is non-compliant. The sections are cross-referenced to photographs and videos taken on 24 April 2013. Each breach is given a risk rating in accordance with Table 6.6 in accordance with AS/NZS ISO 31000:2009 - Risk management - Principles and guidelines. All 12 identified breaches are rated as 'Very High' - being the highest category. 65A number of photographs are attached to the table as is a copy of the DVD recorded during the inspection. It was not in a format I was able to access however I rely on the affidavits, reports, and other material in the council's bundles. 66The principal risks and defects include:
Internal non load-bearing walls, the linings of internal walls and ceilings are constructed of materials with an inadequate level of fire resistance;
Penetrations through the western external wall and suspended concrete slab floors are not adequately protected from fire;
The stairs and balustrades forming part of the required exit from the first and second floors are not constructed in accordance with the BCA and may limit evacuation in a fire;
Stairways are not constructed in a way that isolates them in the event of a fire;
The exit paths from Unit 4 and the fire stairs are not of the required dimensions and could impede egress from the building; and
Fire extinguishers, smoke detectors, emergency lighting, exit and evacuation procedures have not been provided as required. 67Financial records (Tab 5, Exhibit 3) obtained by Subpoena show transaction details recorded as 'rent' from a number of individuals, three of whom were interviewed by Mr Ferguson. The transactions are direct deposits into Mr Khoury's accounts. Several people paid rent for periods in excess of 3 months. 68A Fair Trading Boarding House Registration Form (Tab 6, Exhibit 3) dated 15.5.2013 and signed by Robert Khoury -owner/ manager/caretaker indicates 8 residents living at the boarding house at the time of registration. The form indicates that a maximum of 38 residents could be accommodated on the premises in 12 bedrooms.

Findings 69The terms of the order require the applicant to cease the use of the premises as an unauthorised boarding house. 70The original development consent was for an attached dual occupancy residential dwelling with a building classification Class 1(a). There is no evidence indicating that the applicant sought or obtained development consent for the use of the premises as a boarding house under any Environmental Planning Instrument. 71When development consent was granted for the dual occupancy, the LEP at the time prohibited boarding houses in the zone. Since 2009, SEPP ARH may have permitted the use of the premises as a boarding house but with consent. While the current LEP permits boarding houses in the zone, the use must be with the consent of the council. 72I am satisfied on the basis of the indicative plans of the internal layout of the dwelling, the interviews recorded in Mr Ferguson's affidavit, Mr Khoury's bank statements, and the Boarding House Registration Form signed by him, that the premises are being used as a boarding house. 73A Registration of a Boarding House does not equate to a council consent to use the premises as a boarding house. 74Apart from the registration as a boarding house, I am satisfied by the layout of the dwelling and its description by Mr Ferguson that the internal configuration is consistent with the definitions of 'boarding house' in HLEP 2013 and 'boarding premises' in SEPP ARH. 75I am satisfied on the basis of the description of the premises and its size that the council's classification of the building as Class 3 is reasonable and appropriate. 76Therefore I am satisfied that reasons (1), (2) and (3) for the order are well founded. 77I am satisfied on the basis of the relevant areas of expertise of the council officers and others who undertook the inspection of the premises on 24 April 2013, the detailed description of the areas of non-compliance with the BCA, the Risk Report prepared by Mr Ferguson, and the type and number of non-compliances, especially those in regards to fire safety, that reason (4) is well founded. That is, the construction practice, configuration and building elements used in constructing the sole occupancy units, associated passageways and stairways constitute a life-threatening hazard to occupants. 78There is no doubt that Mr Khoury, as the owner of the building and the person gaining financial benefit from the use of the premises as a boarding house is in breach of s 76A(1)(a) of the Act, and in terms of the order is the appropriate person to whom it should be made. Therefore reason (5) is well founded. 79In regards to the council's contentions, contentions 1, 2 and relevant parts of 3 have been dealt with to the extent that they relate to the terms of the order and the reasons for it. The terms of the order refer to use as a boarding house and do not refer to unauthorised use as a residential flat building. The alternative contention 3b relating to the use of the premises as a residential flat building was not pressed and the applicant provided no evidence in that regard. Therefore I do not have any basis for considering this alternative contention. 80While provision of a detailed plan (contention 5a) would have assisted the council in specifying more precisely what works are required for the safety of the tenants, the works have been well described in the Amended Statement of Facts and Contentions and should provide the applicant with a sound basis for taking appropriate action. In regards to the request for a Statement of Facts and Contentions in Reply, Order 1 of the Registrar on 12 September states that "The Applicant 'may wish' to file and serve its Statement of Facts and Contentions in reply..." The word 'to' is crossed out and the words 'may wish' are inserted. Clearly the applicant didn't wish to file and serve his Statement of Facts and Contentions in Reply.

Conclusions and orders 81Even though Mr Khoury withdrew from the proceedings, I am satisfied I gave him adequate opportunity to participate. Any reservations I might have held concerning his withdrawal and non-participation are overwhelmingly outweighed by council's evidence regarding the fire risks to residents, and to that end, the public interest. 82On the basis of the evidence, I find that the 121 B order issued on 23 May 2013 should not be revoked. Given the number and type of non-compliances with the BCA, I am satisfied there is a risk to the health and safety of any residents and tenants of, and visitors to, the premises. 83The council's detailed reasons for the order, set out in [4] remain and do not need to be repeated or modified. 84Mr Khoury was originally given 60 days from the date of the order to comply. Given the length of time Mr Khoury has been aware of the issues, I consider a period of 60 days to be more than adequate. In accordance with s 121ZK(4)(c) I propose to substitute the original order with an order requiring compliance within 60 days of the date of council's service of a sealed copy of the order on the applicant. 85Therefore the Orders of the Court are: (1)Mr Robert Khoury, owner of premises on Lot 24 DP 26984 known as 36 Frances Street, South Wentworthville, NSW is to cease the use of those premises as an unauthorised boarding house within 60 days of the service of a sealed copy of these orders on the applicant. (2)The exhibits, except 1, are returned.

Judy Fakes Commissioner of the Court 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: 12 December 2013

Procedural matters 5The applicant filed his Class 1 application with the Court on 21 June 2013. 6As is the Court's practice, on 19 July 2013, the Registrar directed that the matter be listed for a preliminary conference under s 34 of the Land and Environment Court Act 1979 (the Court Act). 7The s 34 conciliation conference was facilitated by another Commissioner of the Court and involved an inspection of the premises. The Court's file records that no agreement was reached between the parties, and in accordance with s 34(4) the Commissioner terminated the conciliation conference and the matter was returned to the Registrar for further directions. 8Mr Khoury does not appear to have attended the further directions hearing on 27 August 2013. The respondent was granted leave to file and serve an amended Statement of Facts and Contentions by 4 September and the matter was stood over for another directions hearing on 12 September. 9On 12 September, the applicant was called three times and the directions hearing proceeded in his absence. The matter was listed for a final hearing on 21-22 November 2013. A letter to Mr Khoury from the Court dated 12 September 2013 advises Mr Khoury of the time and date of the hearing; it attaches the Short Minutes of Order detailing dates by which any additional material was to be filed and served. 10Subsequently, I was appointed by the Chief Judge to hear the matter, commencing in Court at 10:00 am. An electronic Court Communication from the respondent's solicitor to the Registrar requested that if the matter was to be heard by a Commissioner other than the person who presided over the s 34 conciliation, that the hearing commence with an inspection of the premises. 11To determine whether the matter should commence on site, the matter was listed for a telephone mention on 19 November. Mr Khoury stated that he strongly opposed another site inspection. The parties were advised that the matter would commence in Court as listed and would be dealt with on the basis of whatever evidence was tendered. 12Mr Khoury appeared as a self-represented litigant. Mr Wright of counsel appeared for Holroyd City Council. A number of council officers were in attendance in case they were required for cross-examination. 13Mr Khoury commenced by declaring that he sought the matter to be heard by a Judge of the Court and, what I understood to be, an adjournment for a period of three months in order to enable him to seek legal advice and prepare his case. He stated that he was not prepared to run his case at this time and that he was ill resourced to do so. He said that he had a medical certificate however he refused to provide it to the Court. In essence he considered that should he be required to run his case today, it would be procedurally unfair. 14Mr Khoury made various statements about the council's behaviour in this matter. Amongst other things he referred to unspecified criminal allegations. Mr Khoury referred to a previous Court matter [Holroyd City Council v Khoury (No 3) [2011] NSWLEC 210 - a Class 5 matter heard by Pain J]. He also stated that he considered the matter had been dealt with during the s 34 conciliation. Mr Khoury was unhappy with another Commissioner dealing with the matter. 15In the alternative, Mr Khoury also stated that he would "withdraw" from the hearing or "withdraw" the appeal. 16After a brief adjournment Mr Khoury was advised of, amongst other things, the need for him to substantiate his request for an adjournment. In particular Mr Khoury was advised that he needed to provide his reasons for requiring more time, what prejudice to him would result from a refusal to adjourn, any prejudice to the council as a consequence of an adjournment, and a justification for a re-allocation of the Court's resources. He was also advised that Commissioners of the Court do not have the power to determine who should hear an appeal. 17As a self-represented litigant, Mr Khoury was also advised of his options in regards to his appeal. If he sought to discontinue the matter, he would have to file a Notice of Discontinuance; this would require the agreement of the council. If he took this action, the s 121B Order remains in place. If he discontinued the appeal, he would not be able to lodge a fresh appeal against the current order. 18Mr Khoury was also reminded that he was the applicant in this Class 1 matter and that he was not a defendant in a criminal prosecution. He was advised that if the adjournment was not granted and he "withdrew" from the hearing, the matter would proceed before me in his absence. 19Despite being advised of the consequences, Mr Khoury maintained his position that the matter be adjourned and re-listed before a Judge. If an adjournment wasn't granted he would "withdraw' from the proceedings. 20Mr Wright opposed the applicant's request for an adjournment for the following reasons:

Mr Khoury has had ample opportunity to obtain legal advice and to determine how he should proceed;
Despite the available time, Mr Khoury has not filed and served any documents, reports or plans;
The council has incurred costs in responding to Mr Khoury's appeal and several staff members are in Court if required for cross examination by Mr Khoury;
Mr Khoury has not produced any evidence to support his request for an adjournment; and
Granting an adjournment would be counter to s 56 of the Civil Procedure Act 2005. 21Mr Wright stated that the council wanted the matter determined. Council's view is that the appeal should be considered on its merits and dismissed. He also stated that he was instructed that council will not revoke the order. 22Mr Khoury then reiterated his position. In his view his house is not a boarding house and that, essentially, if he wants to bring more people into his house to use it to full capacity he should be able to do that. In reply to council's concerns about the non-compliance with the BCA and the risk of fire, Mr Khoury stated that he accepts full responsibility for the people in his home and full liability. He maintained that there is no public interest but rather the interests of private residents. 23Mr Khoury then restated his position that he was not prepared to put on any evidence in Court on that day and that he was withdrawing the case and there would be no adjournment. 24After another brief adjournment Mr Khoury was given another chance to explain why the matter should be adjourned. Mr Khoury restated that he wanted to withdraw. Mr Khoury was advised that if he elected not to participate in the proceedings the matter would be heard in his absence. After a brief discussion Mr Khoury left the Bar table and the Courtroom. 25Mr Khoury returned shortly afterwards and took a seat at the back of the Courtroom. Mr Khoury was advised that he was within his rights to observe the proceedings but that he would not be able to make comments or participate in the process unless he resumed his position at the Bar table. 26Some minutes later Mr Khoury stood up, restated that: he had been operating in good faith, he had done nothing wrong, the matter should be heard by a Judge, it was too traumatic for him to stay; and then he left the Courtroom. 27Mr Khoury did not return and the matter was heard in his absence.

Khoury v Holroyd City Council

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