Sun v Randwick City Council

Land and Environment Court (NSW)|2017-12-06|Before: Molesworth AJ, Ms J

Mr Sun appeals against a conviction of carrying out development unlawfully

On 14 March 2016, Randwick City Council ('the Respondent Council') advised a constituent (presumably) that it had received his or her email of 10 March 2016 expressing concern that a building on land described as 26 Jellicoe Avenue was being used unlawfully as a boarding house (Exhibit 1, Statement of Anne Birkan, p 10 [38] and Tab 14).
Consequently, on 15 March 2016 at 10.00am, a health and building compliance officer of the Respondent Council, Ms Anne Birkan, attended land comprising Lot 19 in Deposited Plan 8098, known as 26 Jellicoe Avenue, Kingsford ('the Land') and carried out an inspection of the Land and the ostensibly residential building on the Land (Exhibit 1, Statement of Anne Birkan, pp 10-11 [39]-[43]).
On 18 March 2016, Ms Birkan issued Mr Xiaohui Sun (and two others) with a penalty infringement notice ('PIN') in the amount of $1,500 for the offence of - on 15 March 2016 at 10.00am - contravening s 76A(1)(a) of the Environmental Planning and Assessment Act 1979 ('EPA Act') by carrying out "[d]evelopment without development consent - class 1a or 10 building - individual" (Law Part Code 87019) on the Land (Exhibit 1: Tab 18).
Mr Xiaohui Sun is one of the registered proprietors of the Land (Exhibit 1, Statement of Anne Birkan, p 4 [18] and Tab 25).
On 21 July 2016, Mr Sun was served with a Local Court Attendance Notice relating to the prosecution of the alleged offence.
On 9 March 2017, before a magistrate of the Local Court in Waverley, Mr Sun was prosecuted by the Respondent Council for the charged offence. At the conclusion of the hearing, the Magistrate found the offence proved and imposed a fine of $2,000 for the offence (Exhibit 2, pp 41 and 44). Additionally, the Magistrate made a costs order requiring Mr Sun to pay the costs of the Respondent Council in the amount of $18,000.

The jurisdictional basis of the appeal

In the Respondent Council's written submissions, it was asserted that Mr Sun's appeal under s 31(1) of the CAR Act was commenced in this Court out of time and that, therefore, Mr Sun needed to be granted leave to bring his appeal. Whilst the Respondent Council changed its position at the hearing to agree that Mr Sun's appeal was commenced in this Court within time (Transcript, p 3), it is still appropriate to explain the jurisdictional basis of Mr Sun's appeal proceedings.
In order for the Court to have jurisdiction under the CAR Act to hear and dispose of an appeal as of right against a conviction and/or sentence imposed by the Local Court, the appeal must normally be made within 28 days after sentence is imposed: s 31(2)(a). As has been mentioned, the sentence in this case was imposed by the Local Court on 9 March 2017.
In order to comply with this requirement, a written Notice of Appeal is to be lodged with the Registrar of the Land and Environment Court that states the general grounds of appeal: CAR Act, s 34. However, it should also be noted that rule 2.5 of the Land and Environment Court Rules 2007 ('LEC Rules') stipulates that: (1) Local Court registrars and such other persons as the Chief Judge may direct are taken to be agents of the Registrar for the purposes of this rule. (2) An agent of the Registrar is to accept documents for filing, and any fees payable in relation to them, as though the agent's office were the registry. (3) As soon as practicable after accepting any documents for filing, an agent of the Registrar is to forward them to the registry together with an account of any fees paid in respect of the documents.
To properly contextualise the explanation of the possible jurisdictional basis, it is necessary to concisely set out the relevant timeline of events leading up to the final hearing of this appeal.
On 5 April 2017 (within 28 days after the sentence was imposed), Mr Sun lodged a written Notice of Appeal with the Local Court Registry at Waverley which, as has already been identified, specified that he was "appealing the above conviction and sentence BECAUSE I AM NOT GUILTY AND BECAUSE THE SENTENCE IS TOO SEVERE". The pro forma header to that Notice of Appeal erroneously stated "Notice of Appeal to the District Court". (It appears that Mr Sun was accidentally handed a blank pro forma Notice of Appeal form by registry staff at the Local Court). Concurrently, on 5 April 2017, the appeal against the conviction and sentence was erroneously listed for hearing before the District Court on 21 June 2017.
On 10 April 2017, the District Court received the Local Court file and, sometime later (presumably on realising that it did not have jurisdiction), forwarded the file to this Court.
In this context, the question is: does the Court have jurisdiction to hear this appeal without Mr Sun requiring leave to appeal under s 33 of the CAR Act? For the following reasons, the answer to that question is 'yes'.
As noted above, Mr Sun lodged a written Notice of Appeal against the relevant conviction and sentence (which specified the grounds of appeal, being that he is not guilty and that the sentence is too severe) within the 28 days stipulated by s 31 of the CAR Act. The lodgement of this Notice of Appeal with the Local Court Registrar at Waverley constituted the making of an appeal under ss 31 and 34 of the CAR Act because, under the LEC Rules, the Local Court Registrar (who is taken to be an agent of this Court's Registrar) was to accept that document for filing as though the agent's office were this Court's registry. That is to say, the Notice of Appeal was lodged with this Court's Registrar when it was lodged with the Local Court Registrar.
The fact that the Notice of Appeal featured the wrong header (being "Notice of Appeal to the District Court") was merely an administrative error that is capable of being cured by this Court under s 62(2) of the CAR Act. Similarly, the action of the District Court in forwarding the documents the subject of the appeal to this Court was appropriate given that the proceedings had been erroneously listed before the District Court rather than the Court with jurisdiction.
On the basis that the Notice of Appeal here was lodged within time, and consistently with the decision of Preston CJ of LEC in Denning v Department of Environment and Conservation (2007) 153 LGERA 200; [2007] NSWLEC 258 at [39]-[47] (although, cf, Hussain v Liverpool City Council [2014] NSWLEC 45 at [17]-[24] - however, in that case, the initial appeal was withdrawn or discontinued and, consequently, the relevant Notice of Appeal was lodged outside the prescribed 28 day period (at [1]-[5], [9] and [20]-[22]), this Court has jurisdiction to hear and dispose of the appeal without needing to grant leave to appeal. In this respect, I reached a similar position with respect to a Notice of Appeal from the Local Court in Soukkar v Blacktown City Council [2017] NSWLEC 161 at [10]-[22].
Consequently, the Court ordered on the day of the hearing (6 December 2017) that the Notice of Appeal dated 5 April 2017 be amended, pursuant to s 62(2) of the CAR Act, to alter the title and such other administrative identifications to identify the appeal as being to the Land and Environment Court rather than the District Court.
Similarly, it is to be noted that the Mr Sun was required, pursuant to s 77A of the Land and Environment Court Act 1979, to commence proceedings in this Court in accordance with the approved form, being that form titled "Summons commencing an appeal". However, the failure so to do until 2 May 2017 is to be treated as an irregularity and does not nullify the proceedings: Land and Environment Court Act 1979, s 68. Hence, in the present circumstances, the initial failure to properly commence proceedings by way of summons is unfortunate but of no significance.

The withdrawal of the sentencing appeal

It is clear that Mr Sun, by way of his Notice to Appeal, commenced proceedings in this Court appealing against both his conviction and the sentence imposed by the Local Court.
However, during the hearing before me, Mr Sun formally withdrew his appeal against the sentence of a $2,000 fine imposed by the Local Court for the offence that he was convicted of (Transcript, pp 38-41 and 58). Accordingly, the Court formally recorded Mr Sun's withdrawal of his appeal against sentence on the day of the hearing (6 December 2017).
This withdrawal was forthcoming after the Court warned Mr Sun that there was a possibility that the Court may impose a higher penalty than the Local Court if it were to convict Mr Sun of the offence: see Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242 at [210] (Transcript, pp 5, 31, 39).

The interpreter

On reading the transcript of the hearing before the Local Court in preparation for the hearing, the Court became concerned that Mr Sun might require an interpreter to assist him throughout the hearing of his appeal (See Exhibit 2, p 43). After Mr Sun expressed his preference to have the benefit of an interpreter in case of language difficulties arising, the Court organised for an interpreter to attend the hearing. In the event, Mr Sun only needed minimal assistance from the interpreter.

The conduct of the appeal

As the Respondent Council submitted, this appeal against conviction is to be by way of a rehearing on the evidence given in the original Local Court: CAR Act, s 37 (although see s 37(2)).

The EPA Act

Section 125(1) of the EPA Act makes it an offence for a person to do something that is forbidden to be done under the EPA Act: 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.
Section 76A(1)(a) of the EPA Act provides that a person must not carry out development on land without development consent if, by an environmental planning instrument, development consent is required for that development to be carried out: 76A Development that needs consent (1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument. (2) For the purposes of subsection (1), development consent may be obtained: (a) by the making of a determination by a consent authority to grant development consent, or (b) in the case of complying development, by the issue of a complying development certificate.

The Randwick Local Environmental Plan 2012 ('the RLEP')

For the purposes of the RLEP, land regulated under the RLEP is zoned by the Land Zoning Map for different overarching purposes: cl 2.2. One of the land use zones under the RLEP is R2 - Low Density Residential: cl 2.1. Development, including the use of land, in each land use zone is regulated by a land use table that, inter alia, specifies the development that may be carried out only with development consent: cl 2.3(1)(c).
The applicable land use table which regulates the use of land in the R2 - Low Density Residential zone is found under Part 2 of the RLEP and is as follows: Zone R2 Low Density Residential 1 Objectives of zone • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To recognise the desirable elements of the existing streetscape and built form or, in precincts undergoing transition, that contribute to the desired future character of the area. • To protect the amenity of residents. • To encourage housing affordability. • To enable small-scale business uses in existing commercial buildings. 2 Permitted without consent Home occupations; Recreation areas 3 Permitted with consent Bed and breakfast accommodation; Boarding houses; Building identification signs; Business identification signs; Business premises; Centre-based child care facilities; Community facilities; Dual occupancies (attached); Dwelling houses; Group homes; Health consulting rooms; Home-based child care; Home businesses; Home industries; Office premises; Passenger transport facilities; Places of public worship; Recreation facilities (indoor); Recreation facilities (outdoor); Respite day care centres; Restaurants or cafes; Roads; Semi-detached dwellings; Shops 4 Prohibited Funeral homes; Any other development not specified in item 2 or 3
I interpose here to emphasise that development for the purpose of boarding house is specified under this land use table as development (and, therefore, a use of land) that may be carried out only with development consent (see cl 2.3(3)(a)).
Under the RLEP, words and expressions for the purposes of the RLEP are defined in the Dictionary to the RLEP: cl 1.4. Relevantly, the term boarding house is defined as follows: 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. Note. Boarding houses are a type of residential accommodation - see the definition of that term in this Dictionary.
As will become apparent, it is also appropriate to set out the definition of "dwelling house" and "dwelling": dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile. dwelling house means a building containing only one dwelling.

The relevant evidence

The Local Court file containing, inter alia, the documentary evidence before the Local Court was admitted into evidence in these appeal proceedings as Exhibit 1. This exhibit includes the following material: 1. An affidavit of Ms Anne Birkan (a Health and Building Compliance Officer of the Respondent Council) sworn 7 March 2017 (including an exhibit and multiple annexures); 2. A Statement of Evidence of Ms Anne Birkan dated 7 March 2017 (including an exhibit); and 3. A Statement of Evidence of Ms Brooke Menzies (a university student who was (on 7 March 2017) a resident of the Land dated 7 March 2017 (including an annexure).
The Respondent Council also admitted into evidence the full transcript of the hearing before the Local Court on 9 March 2017 (Exhibit 2).
In the interests of justice (CAR Act s 37(2)), the Court granted leave for Mr Sun to admit into evidence (subject to weight) four documents: 1. Exhibit A - A document purporting to be a screenshot of a text message from AusBBS Customer Service to Mr Sun dated 16 November 2015 relating to the connection of a telephone service (Exhibit A); 2. Exhibit B - A document purporting to be a lease for the Land dated 30 December 2015 and commencing on 1 January 2016 for a term of three months (with a three month option). (I interpose here to note that this purported lease was already in evidence as part of the Respondent Council's business records and was only admitted into evidence by the Court as a document that Mr Sun sent to the Respondent Council rather than as evidence of a lease - see Transcript, p 52.) 3. Exhibit C - A document purporting to be a screenshot of a webpage on the Respondent Council's website relating to what exempt development is; and 4. Exhibit D - A document purporting to be a screenshot of part of a bank account statement(s).
It should also be noted that two documents purporting to be leases (dated significantly after the date of offence for which Mr Sun has been convicted) were marked for identification as MFI-1 to assist the Court in understanding those parts of the transcript were those documents were referred to.

The submissions of the Respondent Council

The Respondent Council contended in these appeal proceedings that Mr Sun is guilty of the offence charged and that, therefore, the Court ought to dismiss Mr Sun's appeal against conviction with costs. Ultimately, the Respondent Council submitted that this Mr Sun is guilty of an offence against s 125(1) of the EPA Act because it is beyond reasonable doubt that Mr Sun carried out development (on 15 March 2016) on the Land for the purpose of boarding house without the requisite consent and, therefore, in contravention of s 76A(1)(a) of the EPA Act. In support of this position, the Respondent Council made the following submissions.
First, in light of the statutory context set out above and the relevant evidence, the Respondent Council submitted that there is no doubt that, by virtue of the RLEP and the EPA Act, development consent was required to lawfully carry out development for the purpose of boarding house on the Land on the material date. That is to say, the Land was zoned as R2 land under the RLEP and development for the purpose of boarding house was only permissible with development consent.
Secondly, the Respondent Council submitted that there is no doubt that the use of the Land for the purpose of boarding house is not prescribed as exempt development under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.
Thirdly, the Respondent Council submitted that there is no doubt that there is no development consent in force for the use of the Land as a boarding house (citing Exhibit 1, Statement of Ms Anne Birkan, p 2 [8] - where Ms Birkan states that "I have conducted a search of Council's records and confirm that there is no record of any development consent having been granted for a boarding house use" for the Land).
Fourthly, the Respondent Council submitted that there is no doubt that Mr Sun is a registered proprietor of the Land (citing Exhibit 1, Statement of Anne Birkan, p 4 [18] and Tab 25).
Fifthly, and critically, the Respondent Council submitted that there is no doubt that Mr Sun carried out development for the purpose of boarding house on the Land on 15 March 2016. In the words of the counsel for the Respondent Council: The use of the Premises are for the purpose of a boarding house and not a dwelling house given that Mr Sun: rents separate lockable rooms to tenants and provides keys to the room and house to each tenant; collects rent direct from each tenant; chooses the tenants; allocates cleaning chores; charges a levy for toilet paper and 'common costs' and mandates 'house rules'. The tenants live separately and do not share meals.
Indeed, the Respondent Council said that, on the evidence, "…it is inescapable that the persons living in the house on 15 March 2016 were living as lodgers in a boarding house rather than as a share house in the ordinary way of life … [i]t is a disparate group of people" (Transcript, p 56).
In support of this contention, the Respondent Council relied upon the evidence of Ms Birkan's 10 photographs (and description of those photographs) taken during the inspection of the Land on 15 March 2016 at 10.00am (Exhibit 1, Statement of Anne Birkan, Tab 15). In particular, these photographs were said to justify findings, inter alia, that: make-shift partitions had been erected in the building to create additional bedrooms; bedrooms had lockable (padlock) doors; and the garage was being used as a bedroom. Similarly, the Respondent Council relied on a contemporaneous sketch, taken by Ms Birkan during the inspection, of the layout of the building as evidence that the building had four bedrooms (excluding the garage bedroom), a sunroom, a communal toilet, kitchen and laundry but no living room (Exhibit 1, Statement of Anne Birkan, Tab 23).
Additionally, the Respondent Council claimed that Mr Sun has admitted (citing Mr Sun's oral evidence - Exhibit 2, pp 23-24) that: 1. He would (albeit not always) find a person to move into a bedroom in the building on the Land when a person moved out; 2. He was paid rent directly by each person living in the building; 3. He administered a rule that each renter pay a small levy for toilet paper; 4. He administered a rule that if a renter wished to have a person stay the night, an extra tariff of $20 per day or $60 per week was payable; 5. He administered a rule that a renter would need his prior permission before inviting a person to stay the night; and 6. He administered a rule (albeit one open to amendment) that renters would be responsible for cleaning certain parts of the building.
Moreover, the Respondent Council relied on what it said was relevant evidence of the use of the Land prior to the material date by suggesting that this evidence supported the conclusion that the Land was used for the purpose of boarding house at the material date (including, for example, correspondence between Mr Sun and the Respondent Council).
The Respondent Council also submitted that, for the purposes of the relevant definition of boarding house, it was clear - as accepted by Mr Sun (see Transcript, p 16) - that the renters were permitted to stay for at least three months (Transcript, p 56).
Furthermore, the Respondent Council submitted that the Court would be assisted in construing the definitions of dwelling house and boarding house by, inter alia, the decision of Ashfield Municipal Council v Australian College of Physical Education Ltd (1992) 76 LGRA 151 at 153-155.
Finally, the Respondent Council submitted that Mr Sun's reliance on the purported lease document (Exhibit B) was fundamentally flawed because, inter alia, there is no credible evidence to prove that a valid lease to the effect of the document ever existed and, in any event, one of the renters of the building at the material time (Mo Seng) was not on the purported lease (citing Exhibit 1, Statement of Anne Birkan, p 10 [41]). Similarly, the Respondent Council submitted that the Court ought to place no or only limited weight on the purported new evidence given by Mr Sun in his written and oral submissions to the Court during the hearing of this appeal.
Thus, for all of the above reasons, the Respondent Council concluded that the Court ought to dismiss Mr Sun's appeal against conviction.

The submissions of Mr Sun

Mr Sun's appeal of his conviction entirely focussed on his implicit contention that, on the evidence, the Court could not be satisfied that he carried out development for the purpose of boarding house on the Land at the material date because there is at least a reasonable doubt that the purpose of the relevant use of land was actually that of dwelling house (in the form of a share house). In this respect, I note that the Respondent Council raised no issue that the use of the Land for the purpose of dwelling house would not be lawful.
In support of this fundamental contention, Mr Sun made the following principal points.
First, Mr Sun submitted that the characteristics of the use of the Land at the material date were not those that one would expect to find in a boarding house use. If the use of the Land was for the purpose of boarding house, Mr Sun submitted that you would expect a high turnover of people occupying parts of the building for a limited period of time. In Mr Sun's own words: If it is a boarding house, is individual they have different person, you can come in live two weeks, you can come to live three weeks, all separated, all different, but is not. The tenant are there, the four people, they know each other, they agreed to the lease, they share the duty of the house. (Transcript, p 36).
Similarly, if the use of the land was for the purpose of boarding house, Mr Sun argued that you would not expect to find a small group of tenants sharing a lease: We choices as a group renting, send the lease to council, council respond to me say is okay, we don't pursue to this issue further. So then in the after I get that later on December, we didn't touch that any more. (Transcript, p 32).
In this respect, whilst Mr Sun conceded that the people renting the property were not subject to a lease before December 2015, Mr Sun said that he had remedied this situation by the material date - such that the building was used as a shared dwelling house by four people for a term of three months commencing on 1 January 2016 (Exhibit B). This arrangement, four people (who Mr Sun said knew one another) jointly leasing the Land for a term of three months with an option to extend was suggested to be inconsistent with the use of the land for the purpose of boarding house. Indeed, Mr Sun submitted that the purpose of creating the lease was to regularise the use of the Land in a manner recommended by the Respondent Council (Transcript, p 13). In Mr Sun's words: What's different is I didn't run a boarding house before. It's not a run a boarding house after. What I did, I follow the council guide. Maybe before December because I don't know the law I put people live there. They didn't bound by lease. After council's advised me December, I did my best to keep that house safe, tenant happy, low density is all deal with the people there, they share the house, they happy with it, and so after that we did not rent the garage to anybody, did not put any extra room. (Transcript, p 24).
Secondly, Mr Sun argued that the indicators relied upon by the Respondent Council to prove that it is beyond doubt that the Land was being used as a boarding house at the material date do not, when properly understood, support that conclusion. In essence, Mr Sun submitted that the Respondent Council had the 'wrong end of the stick' in inferring from the evidence that Mr Sun imposed himself as an active boarding house master when, in fact, he was responding to his renters' requests to perform certain discrete tasks as an optional (and perhaps desirable) service.
With respect to the direct payment of rent by each renter to Mr Sun, Mr Sun argued that this arrangement was in response to his renters' desire for a more convenient means of paying rent: "[w]hat I did, we did get money individually from the tenant because that's the way running the house. Some people move in, some move out, the different time. Then maybe the bill is harder for them to separate" (Transcript, p 48). Mr Sun also submitted that: "No, before that [15 March 2016?] they all go to the Mr Matthieu collected then pay me. But after that [15 March 2016?] that's extra job for them they still individually to pay the rent. But they are bound by the lease. By the all the lease." (Transcript, pp 16 and 24). In this regard, Mr Sun suggested that it was difficult initially to find renters when the Land was offered for rent in the normal fashion (Transcript, p 11). Finally, Mr Sun criticised the simplistic reasoning of: if renters pay the landlord directly, then the use of the land must be that of boarding house (Transcript, p 45).
With respect to the toilet paper tariff and house rules, Mr Sun suggested that these features of his relationship with the renters were services requested by the renters. Mr Sun initially commenced the toilet paper service (charging for and delivering toilet paper) to assist a renter who did not have access to a car: "[d]on't have the car in the house, so I try to help them to do some toilet paper shopping or something. To arrange some of the common cost." (Transcript, p 26). Mr Sun also suggested that the various house rules were rules developed by the renters and only administered by him for their benefit (Exhibit 2, p 23). Mr Sun also said that he paid the electricity, gas, water and internet bills (Transcript, pp 27 and 38).
Additionally, Mr Sun adopted a similar position with respect to his role in organising new renters to replace old renters: So, that's every time when I somebody introduce friend in or I find a new tenant who want to move in, I always put it in all the tenant together and then everybody agree they join the list together for another extra three months. Then he start over again. (Transcript, p 18). However, Mr Sun stressed that it always remained the collective decision of the existing renters as to whether a new renter joined the share house (Transcript, p 24).
With respect to there being an occupant residing in the "living room" in March 2016, Mr Sun submitted that this was a temporary solution to an unexpected issue that arose when one of the other renters changed his mind about leaving the share house: Yeah. That happen is because the Mr Blanchet he give me the two weeks' notice he want to move out. So that's we try to get a new tenant in, move in. On that time have two people that applied. One people then because we because he didn't move out so that's the reason we put some, temporary put some furniture and some bed base. Make an extra room in the living room let the India guy live there. And he just move in and you can see that. (Transcript, p 17 - see also p 32).
Similarly, Mr Sun submitted that the person living in the garage had, two days after the material date (17 March 2016), moved out because Mr Sun had promptly evicted him on finding out that the Respondent Council had an issue with this arrangement: (Transcript, pp 17, 20, 27 and 30). Mr Sun did not believe he needed a development consent to authorise this arrangement (Transcript, p 43).
Thirdly, Mr Sun contended that in characterising the purpose of use of the Land, the Court ought to interpret the definition of boarding house in light of the broader purpose of the relevant planning controls in regulating this form of development. In Mr Sun's words: …what's the purpose we think you see the landlord's purpose is a fact you put too much people crowd there, make people in danger, make a tenant in danger, make the space is available ugly, and the people is not liveable. Actually that four bedroom house is 400 square metres, 400 square metres. Every room is more than 15 square metres. One room live one person. I can show you the pictures of what the house looks like at the moment. Nobody when you're walking there you don't think that's a boarding house, that's our family room. (Transcript, pp 45-46).
Fourthly, Mr Sun made a number of submissions as to the consequences of the Respondent Council's conduct and how the alleged offence should be understood in this context. Put shortly, Mr Sun submitted that, at the material time, officer(s) of the Respondent Council (not necessarily deliberately) misled him into believing that the use of the Land was fundamentally lawful (although perhaps with minor non-compliances, such as non-compliant internal partitions) and then subsequently (and harshly - that is, without affording a sufficient opportunity to redress the alleged unlawfulness) adopted the radically different position that his use of the Land was unlawful. In stark contrast, Mr Sun submitted that he always conducted himself in good faith and so as to promptly allay the Respondent Council's concerns: "Even I did not agree the council officer's view; I still took off temperate structure room and let Mr Wan move out".
According to Mr Sun, the pertinent facts are as follows. Immediately before the material time, there were four renters in the building. Mr Sun used "some furniture, a wardrobe, and … some timber" to make an extra room (which was unoccupied). One week after completing these internal construction works, Mr Sun's neighbour complained (Mr Sun suggested that this neighbour had an ulterior motivation for complaining) and the Respondent Council sent a letter communicating to Mr Sun that the extra room (and extra renter) would make the building a boarding house and, therefore, an unlawful use of the Land. In response, Mr Sun immediately (and in conformity with the Respondent Council's advice) removed the ad hoc extra room and made efforts to ensure that the house was only used for the purpose of dwelling house (Transcript, pp 11-12 and 20). Mr Sun said that the Respondent Council confirmed, after this action, that the Respondent Council was satisfied that the use was lawful (Transcript, p 14).
To provide three examples of Mr Sun's submissions regarding the Respondent Council's conduct: You advise me face to face. Why then say at the moment it is okay, because if not okay, one leave. Then because of the argue of the ticket then you say you are not okay, everything has changed, there you need to pay this fine. That's what is not fair. Is it is not a use that the law is the protector on this situation, is not to punish on this people. That's how my view. The planning law, even Boarding House Act, is protect people, is not punish people in purpose. (Transcript, p 48). Because in the Local Court we never talking about the group renting. Never talking about the counsel grant me how four people can share the house legally. When I get as a normal citizen, normal landlord. When I get a letter from the council, after we submit the lease to them, according they are required according their guideline. They give me the permission to do it. So of course when the tenant finishes a lease and move out we put the new person in. That's very reasonable and common sense. So if they say break the law, that's the council leave the for me, four people share that, we didn't break it. The council grant me to do that. That's the first things. Second is, we did follow the council's have the head of the lease, collect the rent and pay me as a whole, but after the access for two or three months ... (not transcribable) … because people move in, move out, paying different they different term, they also pay different money. (Transcript, p 36). My bottom line is you come to my home and say you do this is okay, then you go to Courtroom and you say you do this is not okay, I want to punish you. That's the issue. Like it I told you before, I park car in my home in driveway, everybody know that driveway the land belong council, but they only go to my house. You park the car there the parking officer come in and said now is okay, you can park there. Next day come in, he say he change his mind and he give me a ticket. You happy? You not happy. But he's not happy, it is unfair. You get a trap for me. (Transcript, pp 49-50).
Finally, although quite unclear, it should also be noted that Mr Sun made submissions to the effect that he had believed that the relevant use of the Land was lawful because aspects of it "was exempt DA under State Environmental Planning Policy" (Transcript, p 43) and/or lawful under the Boarding Houses Act 2012 ("During that time I found more than five tenants is belong to boarding house from Board House Act").

Consideration

After carefully considering the available evidence and the respective submissions of the parties, I have determined that it is beyond reasonable doubt that Mr Sun, on 15 March 2016, carried out development on the Land for the purpose of boarding house without the requisite consent and, therefore, in contravention of s 76A(1)(a) of the EPA Act. Accordingly, Mr Sun is guilty of an offence against s 125(1) of the EPA Act and, pursuant to s 39(1) of the CAR Act, this appeal against conviction will be dismissed. The reasons for my decision are as follows.
At the outset, it is important to set out the following material conclusions of the Court - despite the fact that these propositions were not in dispute between the parties.
First, I accept the Respondent Council's submission that there is no doubt that, by virtue of the RLEP and the EPA Act, development consent was required to lawfully carry out development for the purpose of boarding house on the Land on the material date (RLEP, Parts 1-3 and Land Zoning Map).
Secondly, I accept the Respondent Council's submission that there is no doubt that the use of the Land for the purpose of boarding house is not prescribed as exempt development under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.
Thirdly, I accept the Respondent Council's submission that there is no doubt that there is no development consent in force for the use of the Land as a boarding house (Exhibit 1, Statement of Ms Anne Birkan, p 2 [8] and Affidavit of Ms Anne Birkan sworn 7 March 2017).
Fourthly, I accept the Respondent Council's submission that there is no doubt that Mr Sun is a registered proprietor of the Land (citing Exhibit 1, Statement of Anne Birkan, p 4 [18] and Tab 25).
In this context, as has been foreshadowed above, the only contested issue for the Court to determine is whether or not it is beyond reasonable doubt that Mr Sun carried out development for the purpose of boarding house, as defined under the RLEP, on the Land on 15 March 2016. That is to say, is it beyond reasonable doubt that - on a proper construction of the RLEP - the use of the building on the Land was that of a building that was (1) wholly or partly let in lodgings and (2) provided lodgers with a principal place of residence for 3 months or more and (3) may have had shared facilities and (4) had rooms that accommodated one or more lodgers?
In considering this question it is of some assistance, despite the different context, to have regard to the following passage in Ashfield Municipal Council v Australian College of Physical Education Ltd at 155: Boarding-house is, as I have quoted above, defined as including a house "let in lodgings". That phrase is not defined in the model provisions. I was taken by the applicant's counsel to the dictionary meaning of lodgings. "Lodging" means accommodation in hired rooms. The dictionary meaning is only of limited use. What has to be considered is the use and occupation of the premises on the facts adduced in evidence. When one considers the evidence that the premises are owned by the respondent, (which, of course, is not itself an occupant) whose students apply to it for an agreement to occupy a numbered room, for rent, with services provided, and with a sharing of common facilities in each house, it seems to me inescapable that what is more appropriately described here is letting the houses as lodgings and not using them in the same way as a family group in the ordinary way of life.
It is clear (beyond reasonable doubt) on the evidence that the proper characterisation of the purpose of use of the Land on 15 March 2016 was that of boarding house as defined under the RLEP and not any other purpose of use, including the permissible use of dwelling house.
The building on the Land was not used as a dwelling house in a manner commonly known as a share house. The building was used such that it was wholly let in lodgings to lodgers (as their principal place of residence for 3 months or more) and such that the building had shared facilities and rooms for each lodger. The reasons why this is so are as follows.
First, regardless of the uncorroborated submissions of Mr Sun explaining why he was directly involved in managing the occupation of the building in various ways, the evidence is clear that, at the material date, Mr Sun was directly managing the occupation of the building and did so in a way that was fundamentally inconsistent with the landlord - tenant relationship (even allowing for a flexible understanding of this relationship) that characterises a dwelling house (share house) use. Rather, Mr Sun maintained a relationship with each renter that should be characterised as boarding house manager and lodger.
To be sure, Mr Sun may not have intended to do so and it may be that it was not a conventional boarding house manager - lodger relationship. Moreover, it may very well be that the renters desired the relationship they had with Mr Sun rather than a landlord - tenant relationship. Nevertheless, it was a relationship of boarding house manager - landlord.
There is no dispute that, at the material date, the renters in the building were paying Mr Sun rent individually and directly for their room and the use of, inter alia, the communal bathroom and laundry facilities. Mr Sun played a role in administering the rules of the house, such as a cleaning roster, and -importantly - imposed a rule that renters were to obtain his permission and pay him an additional charge if they wanted to have a guest stay the night. If it is correct that the rules of the house were agreed by the renters rather than imposed by Mr Sun, why is it that Mr Sun would give permission and be paid if a guest stayed the night? It is highly likely that the house rules were instigated by Mr Sun and that the renters simple acquiesced.
Additionally, Mr Sun said that he paid the electricity and gas bills and was prepared to be actively involved in finding a new renter should an existing renter depart the building. Significantly, Mr Sun confirmed that, on occasion, when a vacancy in a room occurred, he would find "a new person" to fill the vacancy, saying that such a practice is "reasonable and common sense". He indicated that he introduced the new person and that the existing renters say that they are happy. I do not accept that the willingness of the existing occupants to accept a newcomer is indicative of a 'share house' arrangement, rather than a boarding house with lodgers run by the manager, Mr Sun. There may be a range of reasons why an existing renter might simply agree to accept a stranger, albeit a person introduced by the manager, entering the building - perhaps for fear that to do otherwise might jeopardise their own continuing occupancy.
Furthermore, Mr Sun suggested that he was personally involved in constructing the ad hoc additional room in the building and was responsible for the occupation of the garage and living room as additional bedrooms. The evidence is that some of the rooms had the facility to lock doors.
Ultimately, whilst Mr Sun sought to explain these factual circumstances and justify why he performed the role that he did, the incontrovertible conclusion to be drawn from the uncontested evidence is that the renters in the building were temporary (for three months or more) lodgers rather than tenants. It would do violence to the meaning of the words landlord and tenant to accept that the renters and Mr Sun had a landlord - tenant relationship. Put shortly, Mr Sun had far too much involvement and the renters had far too little independence with respect to the management of the house for it to be possible to characterise the purpose of use of the building as dwelling house in the nature of a share house.
Secondly, the physical structure and internal layout of the building on the Land at the material time strongly supports the conclusion that the purpose of use was that of boarding house. The building had been altered, by Mr Sun rather than the renters, to effectively only constitute a building of lockable bedrooms (including the ad hoc garage and living room bedrooms) and communal essential facilities. That is to say, it was not designed in a way that is consistent with a dwelling house in which, for example, a group of university friends can enjoy the building as a dwelling, as a home.
In contrast, it was designed in a way to allow renters to have an entitlement to lodge in a room and use essential communal facilities. To reiterate the words in Ashfield Municipal Council v Australian College of Physical Education Ltd, "it seems to me inescapable that what is more appropriately described here is letting the houses as lodgings and not using them in the same way as a family group in the ordinary way of life". This is made clear by the photographic evidence and sketch layout referred to above, as well as Mr Sun's own evidence.
Thirdly, in response to Mr Sun's submissions outlined above, it is necessary to make the following points. Even if I was to completely accept Mr Sun's evidence and submissions concerning the conduct of the Respondent Council (which I do not), this could not influence whether or not the use of land at the material date was for the purpose of boarding house. Similarly, Mr Sun's mistaken understanding of the significance of other legislation and regulations is irrelevant (even if unfortunate).
Fourthly, I am satisfied that the four elements of the applicable definition of boarding house are clearly satisfied and that, on a proper construction, the use of the Land here was, consequently, for the purpose of boarding house. More specifically, as is clear from the evidence referred to above, the building was wholly let in lodgings and (2) provided lodgers with a principal place of residence for 3 months or more and (3) had shared facilities and (4) had rooms that accommodated one or more lodgers. Adopting a common sense and practical approach, it is clear that the use of the Land was, on this definition, for the purpose of boarding house.
Finally, it is important to stress that given that the offence is a strict liability offence, the material evidence relates to what was occurring at a particular point in time, on just one day, being the date identified in the PIN (15 March 2016) and subsequently considered by the Local Court. It may be that, subsequent to that day, Mr Sun has endeavoured "to make amends" and change the modus of the management of the premises. It may be that he has endeavoured to change the operation away from that of boarding house to that of dwelling house. However, any such efforts are, albeit a demonstration of good intent, irrelevant as to whether, on the material date, the Land was being used for the purpose of boarding house without the requisite consent and, therefore contrary to s 76A of the EPA Act.
For all of the above reasons, and based on a careful consideration of the evidence and submissions, I am satisfied that it is beyond reasonable doubt that, on 15 March 2016, Mr Sun carried out development for the purpose of boarding house on the Land without the requisite consent and, in so doing, committed an offence against the EPA Act.

Costs

Under the CAR Act, this Court has the power to "make such order as to the costs to be paid by either party (including the Crown) as it thinks just": s 49(4). However, pursuant to s 72, an appeal court that orders an appellant to pay costs "must state a time within which the costs or other amount must be paid".
As Pain J said in Moseley v Queanbeyan-Palerang Regional Council (No 2) [2017] NSWLEC 52 at [59]: Pursuant to s 49(4) of the Appeal and Review Act the Court may make such order as to costs to be paid by either party as it thinks just. Section 70 concerning limitations on the award of costs against public prosecutors is not relevant as I did not uphold the conviction appeal. Under s 72(b) the Court must order costs be paid within a stated time. Costs are compensatory not punitive per Latoudis v Casey (1990) 170 CLR 534 at 543. As the Appellant has been unsuccessful in the appeal against conviction it is appropriate to make an order that the Appellant pay the Council's costs. That order will be suspended for 12 months to allow the Appellant time to pay those costs.
With respect to costs, the Respondent Council submitted as follows: As I understand it, Mr Sun has elected to withdraw the appeal in relation to penalty, so all that your Honour is determining today is whether he ought be convicted, and I do not understand that there is any power on that basis to interfere with the costs order that was made by Milledge LCM … In respect of these proceedings the council, if it is successful, seeks its costs in relation to the proceedings and you will find the power to make that order within the Crimes Appeal Act, and relevantly s 49(4) of the Crimes (Appeal and Review) Act 2001, "...the...Court may make such order as to the costs to be paid by either party...as it thinks just", which is not dissimilar to the power that was exercised by Milledge LCM in the proceedings below, her power came under s 215 of the Criminal Procedure Act but was in relation to what was just. Her Honour gave reasons at the end of the judgment as to why she considered it appropriate to make that costs order. In relation to the costs of these [appeal] proceedings, my instructing solicitor has prepared an affidavit setting out the costs claimed and relevantly those costs, and I don't think it's intended to come to this exact amount, but it comes to just over $18,000 for these proceedings, but that would be reflective of an indemnity costs order and when your Honour is considering a quantum that may be just, and I say your Honour would make a specified sum costs order, to save further ongoing costs in these proceedings which would relate to assessment of costs, but your Honour might discount those costs to reflect a discount that would typically be seen on a costs assessment. As a general rule of thumb of practitioners, the costs typically awarded are about 75% of those that are claimed and that is a very rough estimate of those. (Transcript, p 58).
In support of those submissions, the Respondent Council relied on the affidavit of its solicitor Mr Mark Doble, sworn 5 December 2017. Ultimately, the Respondent Council sought an order for costs in the amount of $20,840.55 or, with a reduction to "75% of solicitor's costs", $17,917.55.
The Respondent Council argued that there is no basis for Mr Sun to claim that it would be unfair for the Court to order that he pay the costs of these appeal proceedings. In particular, it was said that: Mr Sun approached this matter in a way that effectively put the blinkers on his eyes and his ears. The evidence set out in Ms Birkan's statement and affidavit is that he had been continually warned by the council that what he was conducting was a boarding house, that if he desired to obtain consent… that he needed to put in a development application and this was warned in December of 2015 … (Transcript, p 59). To say that Mr Sun has not understood the matter before him or not understood it enough to know that he ought to obtain advice from a qualified person is not a submission that you would accept that he has been treated unjustly to the extent that the Court would not form the opinion that it was just to waive costs in this particular instance. (Transcript, p 60).
In response, Mr Sun made the following submission: Yeah, I understand those there is, unfortunately when the plan officer to come to the property, they check with me three times. If he notice me that is a boarding house or we have not have less the costs in here. If I pay the $1,500 infringement ticket, the case he won't be here too. … So that's a maybe is a pity for me to choose the wrong choice, but actually it is his as an act of the law, or have the management of counsel, he should protect the people, he is not harm your people. That's all I want to say.

Mr Sun should pay the Respondent Council's costs

The effect of my judgment in dismissing this appeal is that the conviction before the Lower Court stands including the $2,000 fine. Further, the order for costs, in the amount of $18,000, in the Lower Court stands. In the context of the PIN seeking to impose a $1,500 penalty, Mr Sun's decision to challenge the PIN resulted in an outcome far worse, comprising both a conviction and an aggregate financial cost to him of $20,000. Now Mr Sun comes before this Court on appeal and chose to be self-represented and not to call any independent evidence to verify his assertions. Sadly, this approach has meant his submissions were largely unsupported. Being self represented is not be discouraged where the circumstances warrant it, but when it is clear that a party has not obtained any legal or other independent advice but rather pressed ahead claiming to be in the right, despite warnings to the contrary, such an approach is foolhardy.
In this case, Mr Sun had a view from the outset and has maintained it. Having lost before the Court below, Mr Sun should have sought advice before commencing these proceedings, and at the very least, assembled new evidence to convince this Court that the conviction below was wrong. Proceedings before this Court come at a cost: a cost to the party bringing them (such as the unseen costs of time away from private business or employment); a cost to the Respondent Council which retains solicitors and often barristers and has council officers in attendance in Court; and a cost to the State, in the form of the Court itself and all that it comprises. Had Mr Sun obtained sound advice before embarking upon his course, these proceedings may not have needed to be heard.
In all the circumstances and having regard to the affidavit of Mr Doble, I am of the opinion that it is just that Mr Sun should pay the Respondent Council's costs in the amount of $12,000 with such costs to be paid within 90 days.

Orders

The Court orders that: 1. The appeal is dismissed; and 2. Mr Xiaohui Sun is to pay the costs of the Respondent Council in the amount of $12,000 within 90 days of these orders.

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: 22 December 2017

(2007) 153 LGERA 200

(2006) 145 LGERA 189

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