Cheong v Hornsby Shire Council

[2017] NSWLEC 1591

Land and Environment Court

New South Wales

Medium Neutral Citation:	Cheong v Hornsby Shire Council [2017] NSWLEC 1591
Hearing dates:	22 August 2017
Date of orders:	24 October 2017
Decision date:	24 October 2017
Jurisdiction:	Class 1
Before:	Martin SC
Decision:	(1) The Appeal is dismissed. (2) The Exhibits, save for A, B, 2 and 4, are returned.
Catchwords:	Appeal against Order issued under s 121B of the Environmental Planning and Assessment Act – development consent required for use of premises as a boarding house – no development consent held for use as a boarding house – use of premises as a boarding house - order requiring cessation of use - discretion available to the Court
Legislation Cited:	Boarding Houses Act 2012, ss 3, 4, 6, 9 Building Code of Australia, Part A3 Environmental Planning and Assessment Act 1979, ss 4,76A, 79C, 121B, 121G, 121ZK Hornsby Local Environmental Plan 2013 Land and Environment Court Act 1979, s 39 Local Government Act 1993
Cases Cited:	Ashfield Municipal Council v Australian College of Physical Education Ltd (1992) 76 LGRA 151 Dobrohotoff v Bennic (2013) 194 LGERA 17; [2013] NSWLEC 61
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Mr Charlie Cheong (Applicant) Hornsby Shire Council (Respondent)
Representation:	Mr Charlie Cheong (Self-represented) Ms Belinda Gough (Solicitor)   Solicitors: Storey and Gough (Respondent)
File Number(s):	2017/12207
Publication restriction:	No

Judgment

1. Mr Cheong, together with Ms Ling, owns a property at 79 Chapman Avenue in Beecroft (‘the Premises’). On 14 December 2016, Council issued an order to Mr Cheong and Ms Ling under s 121B of the Environmental Planning and Assessment Act 1979 (‘the EP&A Act’), ordering them to “cease use of the premises at 79 Chapman Street as a Boarding House” within 60 days (‘the Order’). It is against that order that Mr Cheong has brought this appeal, which action was commenced on 13 January 2017.

2. When this dispute commenced, it was on the following basis: for the reasons set out below at [30], the Council contended that the premises were being used as a boarding house (as that term is defined in the Hornsby Local Environmental Plan 2013) at the date of the Order, and in the absence of development consent, the use was not lawful and had to stop. Mr Cheong did not accept this position: his view was that to the extent the premises needed approval to operate as a boarding house, he had obtained that requisite approval through his application for registration of a boarding house on 12 July 2016 with Fair Trading NSW under the Boarding Houses Act 2012 (that application was subsequently granted). He further contended that Council’s request for a development application and the seeking of development consent was no more than the Council’s “administrative procedure”, and that he did not intend to “waste money on property drawing[s], development planning and environmental impact consultation fee[s]”: Ex A.

3. After the Council had issued the Order the subject of this appeal, and after the Applicant lodged his Statement of Facts and Contentions on 2 March 2017, it would appear that Mr Cheong’s position has changed, as has the use of the Premises, according to Mr Cheong. He no longer seeks to place primary reliance upon the argument that the use of the Premises does not trigger a requirement for development consent (although, somewhat confusingly, that remains in his submission). Rather, his primary contention is now that the Premises are not now operated as a boarding house, but as a dwelling house, which he says has been the case since June 2017. In effect, the Applicant contends that he has changed the use of the Premises, but the Council has not withdrawn the Order. The Council does not accept the first part of this contention, nor does it resile from its position that as a matter of planning law, the premises cannot be used as a boarding house without consent.

4. I find that the Order against Mr Cheong is appealing was validly made; he did not comply with it within the timeframe specified on the face of the Order; and he appears to have complied with it some three and a half months after the expiry of the period for compliance. The Appeal is dismissed.

The Site and the Property

5. The Premises are located within a low density residential locality characterised by predominantly single and two storey dwellings located on a single parcel of land. It is a part-single, part-double storey dwelling constructed of brick veneer and a tiled roof. The front of the building facing Chapman Avenue is single storey while the rear of the building is of two storey construction.

6. A search of Council records has revealed that a building application was made in respect of the Premises in October 1974 (No.2041/1974). Approval was granted for the construction of a rear two storey addition to the existing single storey dwelling, comprising a first floor family room, bedroom and timber deck and a ground floor laundry and store room. There was also a small carport extension.

7. A condition on the stamped plans from 1974 states “this building is not to be subdivided into or let or separately occupied as flats or dual occupancies”: Statement of Mr James Martin, Senior Building Certifier employed by the Council, Ex 2, Annexure C. A subsequent search of the Council’s files did not locate any development consent in respect of the premises: Statement of Nichola Clarke, Ms Nichola Clarke, Council’s Compliance Team Leader, Ex 3.

Relevant Statutory Provisions

8. There are various pieces of legislation which have some role to play in the regulation of boarding houses. This judgment does not purport to traverse them all, nor to provide a narrative on how they interrelate. However, the primary statutory provisions relevant to this case are set out below.

9. Under the Hornsby Local Environmental Plan 2013 (‘Hornsby LEP’), 79 Chapman Avenue Epping is zoned R2 Low density residential. Boarding houses are permitted within the zone with consent.

10. Under the Hornsby LEP “boarding house” is defined as 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.”

11. Under s 3 , the Boarding Houses Act 2012 has as its object:

“… to establish an appropriate regulatory framework for the delivery of quality services to residents of registrable boarding houses, and for the promotion and protection of the wellbeing of such residents, by:

(a)  providing for a registration system for registrable boarding houses, and

(b)  providing for certain occupancy principles to be observed with respect to the provision of accommodation to residents of registrable boarding houses and for appropriate mechanisms for the enforcement of those principles, and

(c)  providing for the licensing and regulation of assisted boarding houses and their staff (including providing for service and accommodation standards at such boarding houses), and

(d)  promoting the sustainability of, and continuous improvements in, the provision of services at registrable boarding houses.”

12. Section 6 of that Act contains the following provision:

“Relationship of Act with other laws

Nothing in this Act limits any requirement imposed by or under the Environmental Planning and Assessment Act 1979, the Food Act 2003, the Local Government Act 1993, the Public Health Act 2010 or any other Act or law with respect to the use, or the provision to services of residents, of boarding premises.”

13. In other words, the Boarding Houses Act2012 does not displace any regulatory requirements regarding boarding houses which are found in other legislation: those requirements continue to have full force and effect.

14. In registering a boarding house, amongst other things a proprietor of boarding premises that are used as a registrable boarding house must notify the Commissioner, in accordance with s 9, of particulars including whether development consent or approval is required under the EP&A Act to use the boarding house as boarding premises and, if so, whether such consent or approval has been granted: s 9(1)(d).

15. The Building Code of Australia classifies a building or parts thereof on the basis of the purpose for which it is designed, constructed or adapted to be used. Relevantly, Class 1a refers to one or more buildings which in association constitute a single dwelling; or in the case of Class 1b, a boarding house with dwellings not located above or below another dwelling (emphasis mine); Class 2 buildings are those containing two or more sole occupancy units, each being a separate dwelling; while Class 3 buildings are residential buildings, other than those in Classes 1 or 2, including boarding houses: BCA Part A3: Classification of Buildings and Structures. It is the Council’s position that the Premises are a Class 3 building.

Council inspections and communications with the Applicant

16. Lengthy and regular exchanges took place between the Council and the Applicant over some months beginning in July 2016. While it is not necessary for the purposes of this decision to traverse all the communications between the Applicant and the Respondent, key events and communications are set out below.

17. In about July 2016 the Council received a complaint from a member of the public that the Premises were being used as a boarding house: Ex 3 at [4]. That complaint set in train a series of actions.

18. Notes were taken by Ms Clarke from the file of the investigating officer, Ms Vidgen (who was not available in Court to give evidence), and included in Ms Clarke’s statement. The extract from Ms Vidgen’s notes states that upon inspecting the property on 14 July 2016, she observed that all four bedrooms were furnished and contained locks on the doors; it appeared the living area was being used as a bedroom; there was signage throughout the house advising of bin nights, house rules and fire exits; and the lower ground floor was used as a habitable dwelling with bedroom furnishings, fridge and food preparation materials. The laundry located in that area appeared to be used for food preparation: Ex 3 at [7].

19. These observations are broadly similar to those made by Mr James Martin, Senior Building Certifier employed by the Council, upon his inspection of the Premises on 26 August 2016.

20. Ms Clarke’s statement also describes a meeting held on 27 July 2016 between herself, two other Council officers and the Applicant, during which meeting amongst other things the Applicant was advised that the Council would be issuing an order requiring him to cease using the property as a boarding house: Ex 3 at [12]. A notice of intention to issue an order to the owner was duly issued, dated 4 August 2016.

21. The Notice of Intention provided the recipient to make written representations to Council as to: why the proposed Order should not be given; the proposed terms of the Order and the proposed period for compliance with the Order.

22. Mr Cheong made representations with respect to that Notice on 8 August 2016. In his response Mr Cheong did not accept that he required consent, but pointed to the requirement under the Boarding Houses Act 2012 that the Council must conduct an initial compliance investigation upon the boarding house being recorded on the register: Ex 2, NC1, Tab 12.

23. With respect to the requirement for consent, the Council’s argument is helpfully summarised in the email from Ms Vidgen to Mr Cheong dated 20 July 2016:

“… Council’s advice to seek approval for the boarding house is not something unique to Hornsby Shire Council. Development consent for a boarding house is a requirement across Local Government areas. Local Councils have the primary role in approving new Boarding Houses and inspecting and enforcing safety and accommodation standards in boarding Houses, The owner of the approved Boarding House is then required to register the approved boarding house with Fair Trading. If a property is registered on Fair Trading, it does not absolve the property owners of the requirement to lodge an application and seek development consent. A boarding house operating with no development consent is unauthorised”: Ex 3, NC1 at Tab 10.

24. Ms Vidgen’s advice continues “should you however not wish to seek regularisation of the boarding house at your property, Council will have no option but to order the cessation of the use of 79 Champan Avenue, Beecroft, as a boarding house”.

25. Mr Martin from the Council attended the premises on 26 August 2016 for the purposes of a fire safety inspection following a request to do so from Mr Cheong (set out at [22]). At that inspection, Mr Martin observed a similar state of affairs to that described at [18] above. He also noted that the sole occupancy doors were key locked: Ex 2 at [5].

26. Mr Martin’s observations led him to the conclusion that having regard to the provisions of the Building Code of Australia, the use of the Premises (as at the date of his inspection) fulfilled the definition of a Class 3 boarding house under the BCA, and therefore had to comply with a range of strict fire and safety requirements: Ex 2 at [7]. Mr Martin’s expert statement [Ex 2] sets out in detail the non-compliance of the Premises with Class 3 requirements, including the absence of fire separation; solid core doors; non-fire-rated ceilings and inappropriate fire alarms.

27. After Mr Martin’s inspection, the Council wrote to the Applicant on 31 August 2016, in the following terms:

“Prior to Council providing further comment on the construction and fire safety measures of the building, it is required that you demonstrate that Development Consent has been obtained for the current use of the building: Ex 3, NC1, p.50.”

28. The Council has been clear and consistent in its communications with Mr Cheong about the need for consent, and also that there were various reports required to accompany a development application to allow the Council to be satisfied that the use of the premises can or will comply with a number of environmental, safety and amenity controls.

The Order

29. As foreshadowed in the various meetings with and correspondence between the Applicant and the Council, the Council ultimately issued an Order, dated 14 December 2016, to the Applicant, some time after the inspections occurred and notice of intention had been provided.

30. The Order required the addressees to cease use of the premises at 79 Chapman Avenue, Beecroft as a boarding house. The time given for compliance with the Order was 60 days from the date of issue (which took the compliance date to 13 February 2017).

31. The reasons given for the issue of the Order by the Council, the subject of this appeal, are set out in full below.

“(1) Council's officer inspected the property on 14 July 2016 and determined that the property was being used for the purposes of a Boarding House, with 8 people residing at the premises.

(2) The property was registered as a General Registrable Boarding House with NSW Fair Trading in July 2016.

(3) The use of the premises as let in lodgings for long-term tenants meets the definition of a Boarding House under the Hornsby Local Environmental Plan 2013.

(4) The use of the property for the purposes of a boarding house requires development consent for R2 zoning under the Hornsby Local Environmental Plan 2013.

(5) Pursuant to the Prescription Measures outlined in the Hornsby Development Control Plan 2013, development for a Boarding House should comply with the planning controls details in the State Environmental Planning Policy (Affordable Rental Housing) 2009, and an assessment of these measures has not been carried out to ensure that the use would comply with these measures.

(6) An application for development consent has not been lodged with the consent authority (Hornsby Shire Council); accordingly the planning provisions for the use of the premises as a Boarding House have not been assessed.

(7) The public notification and exhibition procedures have not been implemented, pursuant to the Hornsby Development Control Plan 2013. As a consequence, neighbouring property owners have been denied the opportunity to participate in the development application process by making submissions to the consent authority on the likely amenity and environmental impacts to their properties.

(8) An assessment of the amenity and environmental impacts has not been carried out by the consent authority (Hornsby Shire Council) pursuant to section 79 C(1) of the Environmental Planning and Assessment Act 1979.

(9) Council's officer issued a letter to Mr C Cheong and Ms B Ling on 15 July 2016 requesting the cessation of the use of the premises as a Boarding House within 21 days.

(10) Information provided by Mr C Cheong on 19 July 2016, 20 July 2016 and 22 July 2016 indicated that the use of the premises as a Boarding House would not cease in accordance with Council's request.

(11) Council received written submissions from Mr C Cheong on 26 August 2016 in response to the notice of intention to issue Order No.1 pursuant to section 120 1B of the Environment Planning and Assessment Act 1979. This submission highlighted Mr Cheong’s opinion that development consent was not required to the use of the premises as a Boarding House.

(12) Council holds concerns that the unauthorised use of the premises could possess a fire safety, parking, security and environmental impacts on the residence within the Boarding House as well as the surrounding properties. An inspection carried out by council's officer determines the number and location of smoke alarms was insufficient and did not satisfy the requirement of the Building Code of Australia.”

The Site Visit

32. A site inspection took place on the day of the hearing. I had the benefit of attending together with the Applicant, the Council’s legal representative and its two witnesses. In addition, at the commencement of the hearing, evidence was given on the roadside by a neighbour, Mr Shields, who resides at number 75 Chapman Avenue, Beecroft.

33. Mr Shields gave evidence to the following effect: in October 2016, there were about 8 people living at the property and there were cars up and down the street. Now, there are “only around three cars” at the house. In answer to a specific question from the Council’s advocate as to whether, in Mr Shields’ opinion the people living at the property since June 2017 were related, Mr Shields responded that he did not believe that they were. He referred to his observation of the Premises being currently occupied by at least three different groups: a man and a lady occupying the “back room”, an Indian couple and a middle aged gentleman: Ex 7.

34. In support of his opinion that the Premises were still being used as a boarding house, Mr Shields also relied upon an advertisement for a room to let, which showed a photograph of a room Mr Cheong later conceded was a room in the Premises. The advertisement was from flatmates.com.au and described the room being offered as being located in Hannah Street, Beecroft. The date of the advertisement was represented as “2017 – 6 – 7”: Ex 6.

35. Mr Cheong challenged Mr Shields’ evidence, in particular Mr Shields’ statement of belief that the rooms within the Premises are still being advertised. Mr Cheong suggested that the room in the advertisement provided by Mr Shields was a room in a house in Hannah Street, Beecroft. In the course of submissions upon return to Court, Mr Cheong sought to discredit the evidence of Mr Shields, stating “he doesn’t like me and I don’t like him”.

36. Before we entered the Premises, I asked Mr Cheong who was currently living there. He said he did not know the names or number of people living there, but that the Premises had been leased to a relative of his wife’s, who also had some friends living there.

32. Mr Cheong then took us through the Premises. During the course of the inspection of the property, Mr Martin gave evidence as to what he described as the areas of non-compliance with boarding house requirements, particularly as prescribed under the Building Code of Australia for Class 3 premises, including non-compliances regarding smoke detectors.

33. Mr Martin also indicated where there had been changes made within the Premises since his last inspection on 26 August 2016. These changes related to: the removal of signage above room doors indicating designated rooms for boarders, as well as removal of lockable handles on most of the bedroom doors (two bedrooms retained locks); the change in use of the room on the ground level at the rear of the Premises which now presented as a store room, and not as a bedroom; and removal of the “Exit” signs placed near external doorways.

34. I observed that four rooms appeared to be in use as bedrooms. There was also a kitchen and bathroom on the upper level. In a walkway between the single and two-storey areas in the house, I observed what I would describe as a make-shift arrangement of two plumbing pipes running across a landing floor in proximity to an upward step, attaching to a washing machine and dryer (the primary laundry being located on the floor below), and had plainly been retrofitted. Mr Cheong’s explanation as to the presence of a second washing machine and dryer (effectively in a hallway) was that it was more convenient for these to be located upstairs.

35. I noted that there was no room in the Premises which would be characterised as a living or lounge room for the use of the occupants, but only one relatively modest room which appeared to be used as a dining room.

36. On a wall unit in the dining room, as well as on the side of a cupboard in a bedroom at the rear of the premises, I observed an evacuation plan, showing numbered rooms as well as points of exit if evacuation were required. When the existence of these plans was pointed out to Mr Cheong, he quickly removed them from the walls where they had been affixed, and said they had been left there in error.

37. In the first bedroom inspected, I observed what appeared to be some kind of electrical switch board, with various wires and electrical cords in proximity to it. This prompted an examination of the electricity meter box, which revealed the presence of a number of switches that seems to be designated for individual rooms. It was unclear when the switches had been installed.

38. I observed that the room adjacent to the bedroom on the left of the house (looking from the street) appeared to be in use as a utility room, and contained various items of laundry and ironing equipment. This had been the room referred to by Mr Shields as being advertised for rent: Ex 6.

39. In the external area immediately adjacent to the ground floor area at the rear of the Premises now said to be used as a store room, Mr Cheong stated on site that he had installed the external sink and attached bench, and electric stove (which had a stainless steel splashback and exhaust fan above it) after he purchased the property. He stated that they were for the purposes of a barbeque.

40. The “outdoor kitchen” was located immediately beneath an attached external verandah constructed of timber. On site, Mr Martin expressed the view that the location of the stove immediately beneath a timber deck presented a fire hazard.

Evidence

46. Each of Mr Martin and Ms Nichola Clarke, Council Compliance Team Leader, gave oral evidence for the Council, in addition to preparing an Expert Report [Mr Martin: Ex 2] and a written statement [Ms Clarke: Ex 3].

47. Mr Martin’s expert report of 17 July 2017 reflected his observations and findings following his site visit on 26 August 2016, and his conclusions “assume that no building works have been carried out since the date of my inspection”: Ex 2 at [4]. Extensive deficiencies were identified in Mr Martin’s report with respect to fire safety at the Premises.

48. Mr Martin’s conclusions with respect to recommended works for the property are germane to the dispute, and bear setting out in full below:

“Due to there being inadequate fire separation of sole occupancy units, inadequate early warning in the event of a fire or emergency, and inadequate provisions to restrict the spread of fire to other neighbouring buildings, the use of the premises as a boarding house should cease until the owner has obtained development consent for the use as a boarding house and the [Building] Code requirements have been addressed”.

Reinstatement to a class 1a dwelling requires the following action:

“i. Rescind all tenants’ contracts and remove boarders from the building.

ii. Remove all internal locks from bedroom doors.

iii. Remove the bed and furniture from the ground floor room presently used as a bedroom and reinstate the use as a store room.

iv. Remove lettering above doors indicating the bedroom layout for tenants.

v. Correctly install smoke detectors to all levels of the building in accordance with the Code and AS 3786”: Ex 2 at [10].

Mr Martin concludes:

“where the use continues without addressing legislative Building Code and Environmental Planning and Assessment Regulation 2000 requirements there will be an unacceptable risk of endangerment to the lives of persons using the premises in the event of fire”.

49. Mr Martin also set out in detail why he would recommend a refusal of any development application for use of the building as a boarding house, due largely to its inadequacies in fire protection measures, including the absence of fire separation between the floor separating the two storey component of the Premises, and the absence of fire-rated doors.

50. Mr Martin gave evidence in Court that the Premises were still capable of use as a boarding house, and pointed to the separate cooking and laundering facilities, which were not common for a single use dwelling. He also pointed to the presence of the evacuation plans, which would not commonly be found in a single use house

51. Ms Clarke had attended the property as part of the Council’s ongoing investigations and in her statement gave an account of an interview with a tenant at the Premises on 30 May 2017 (the Tenant). According to Ms Clarke, the Tenant appeared to live there (“he had been buttering some toast in the kitchen”), and stated that he had been living at the Premises for about 9 months and did not have a date by which he had to vacate. He estimated that there were 9 people living there: Ex 3 at [21].

52. In answer to a request from Ms Clarke, the Tenant emailed a copy of the lease he said related to his residency at the property: Ex 2, NC1 at Tab 16. The tenancy agreement is instructive, containing as it does ten items under the heading “House Policy”. This policy includes matters such as restrictions on parties and visitors after 10 pm; the requirement to “provide own clothing, detergents, toilet and cleaning papers’, and information about rubbish nights. These were described by the Council’s advocate as being rules which tend to regulate people living in close quarters with one another.

53. The Tenant’s response to questions from the Council confirmed that he commenced living there on 16 July 2016 and was there until “last week” (the week prior to the date of the email, which email was dated 9 June 2017). The Tenant confirmed that he no longer lived there and he had moved to a new place. He also stated he did not have any problem living there, did not believe he had bothered anyone while he was there as he was always out of home, and the landlady was a very helpful and nice person: Ex 3, NC 1 at tabs 17 and 18.

54. Mr Cheong placed into evidence what he describes as the current leasing arrangements, being an agreement between the landlord (Christie Ling) and a person Mr Cheong described as the partner of his wife’s cousin and dated 5 June 2017: Ex B. This Agreement is in the form of a standard form Residential Tenancy Agreement issued by NSW Fair Trading. It had the names of tenants one and two redacted. Under the terms of the Agreement, a periodic agreement is able to be ended by either party giving written notice, which can be given at any time. The landlord is required to give at least 90 days’ notice, while the tenant must give at least 21 days’ notice. The agreement specifies that no more than 9 people can live in the Premises. No separate charge is made for electricity, gas or water charges. According to Mr Cheong, that agreement is the only rental agreement currently in place in respect of the property.

Discussion and Findings

55. Under the EP&A Act development must not be carried out except with development consent, if an environmental planning instrument provides that consent is required: s 76A EP&A Act. The Hornsby LEP clearly states that the use as a boarding house is permissible in the R2 zone with development consent (emphasis mine). Thus the Premises can only be used for the purpose of a boarding house pursuant to an extant development consent.

56. It is clear from Mr Cheong’s correspondence with the Council that he founds his strong view - that no consent is required for the use of the premises as a boarding house - in his belief that as there is “no new development or any property structural changes” there is no “development” and thus no trigger for development consent. This is not correct. Under the EP&A Act the definition of “development” includes the use of land, as well as the carrying out of works on land: s 4.

57. Notwithstanding the complex set of legal requirements and definitions relating to boarding houses, it is beyond doubt that development consent is required for the Premises to be used as a boarding house at 79 Chapman Avenue, Beecroft. It follows that any use of the Premises as a boarding house without development consent is unlawful.

58. Likewise, it is also not correct to characterise the requirement for development consent to be no more than an “administrative procedure”, as Mr Cheong sought to do. Specific and detailed regulatory requirements are in place to provide assurance that people are able to inhabit safe environments. Failing to address the relevant regulatory requirements would lead to “an unacceptable risk of endangerment to the lives of persons using the premises in the event of a fire”: Mr Martin, Ex 2 at p.11.

59. The Council’s case is that the Premises have been, and continue to be, used “wholly or partly as let in lodgings” which has provided lodgers with a principal place of residence for three months or more.

60. The definition of “let in lodgings”/short-term accommodation was discussed in the case of Dobrohotoff v Bennic (2013) 194 LGERA 17; [2013] NSWLEC 61 (‘Dobrohotoff’) decided by Pepper J. In that case, in considering the ordinary meaning of the term “dwelling house”, her Honour agreed with the Applicants in that case that the use of the property could not be characterised as that of a dwelling house, as it was not being occupied in the same way that a family group in the ordinary way of life would occupy it: [38].

61. Her Honour placed reliance upon the decision of Pearlman CJ in Ashfield Municipal Council v Australian College of Physical Education Ltd (1992) 76 LGRA 151 (at page 153). In that case the relevant planning instrument defined "dwelling" in identical terms as in the Dobrohotoff case. In dispute was whether or not residential accommodation offered by an educational institution for students constituted a boarding house rather than a dwelling-house, the former of which was prohibited. Her Honour held that the accommodation constituted a boarding house because (at page 155):

“When one considers the evidence that the premises are owned by the respondent...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 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.”

62. The Council’s submissions regarding the characterisation of the use of the Premises is that separate rooms are rented out to unrelated persons; the tenants share common facilities such as laundry, kitchen and common areas; the tenants are not using the premises in the same way as a family group in the ordinary way of life; and the tenants are in occupation for longer than three months.

63. The Applicant submits that there were only 4 tenants in the premises as at 14 July 2016. He also referred to the different definitions of “boarding house” under the Hornsby LEP, the Boarding House Act 2012 and the Local Government Act 1993. The Applicant further contended that the Premises do not meet the Local Government Act 1993 or ANSEPP/Hornsby LEP definition of boarding house: Ex B at [7]. As far as the three month minimum term of tenancy is concerned, which was referred to in Ms Clarke’s statement, the Applicant described this as “just a word in the advertisement”.

64. The Applicant also disputes the Council’s record of events with respect to the meeting of 27 July 2016 and prepared his own version of the discussion, which the Council declined to adopt: Ex B at [9]. The Applicant also rejects the Council’s statement as to what occurred on 30 May 2017 (referred to above at [51] and [52]), stating that he did not have an opportunity to verify this and respond to the Council: Ex B at [11].

65. With respect to the advertisement of the bedroom on “Flatmates” dated 2017-6-7, which Mr Cheong initially denied showed a room in the Premises, but later conceded showed a photograph of a room within the property (now being used as a utility room), Mr Cheong’s explanation of this was that it was an old advertisement and he had neglected to remove it from the website.

66. Under s 121ZK of the EP&A Act the Court is empowered to hear an appeal against an Order made under s 121B. Under the Land and Environment CourtAct 1979, such an appeal is by way of rehearing: s 39. On hearing an appeal the Court, the Court may:

“(a)  revoke the order, or

(b)  modify the order, or

(c)  substitute for the order 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.”

67. Based on the evidence before me, I am satisfied that no consent has been granted for the use of the property as a boarding house. I am further satisfied that, in the absence of any further consent, there remains a condition in place restricting the use of the Premises such that it is not to be subdivided into or let or separately occupied as flats or dual occupancies. I do not accept the Applicant’s submission that there may be in existence some other consent or permission with respect to use of the Premises, which consent is missing.

68. I am further satisfied, based on the evidence before the Court, that at the time that the Council issued the Order the subject of this appeal, the Premises were being used as a boarding house, in contravention of the Hornsby LEP and related regulatory requirements. I make this finding for the reasons set out below.

69. There is ample evidence regarding the use of the Premises as a boarding house in July and August 2016. This is not in dispute between the parties. Ms Vidgen noted in email correspondence dated 20 July 2016 with Mr Cheong (attached to his written submissions) that in July 2016, Mr Cheong himself confirmed that his property was being used as a boarding house. He also by his own admission agreed that the property was being used as a boarding house “as per Boarding House Act 2012 definition, officially registered as Registrable Boarding House with NSW Fair Trading on 12 July 2016”: Ex B, email between Mr Cheong and Ms Vidgen and Ms Clarke, 26 August 2016. At the hearing Mr Cheong put to Mr Martin that the property had been used as a boarding house in 2016, and Mr Martin agreed with the Applicant that boarding houses would have a second kitchen and laundry.

70. I accept the on-site evidence from Mr Shields with respect to the activity occurring at the Premises in October 2016, noting his observation that there has been a less intensive use of the Premises after that time.

71. The evidence also supports my finding that the Premises continued to be used as a boarding house at least up until the beginning of June 2017, having regard to the exchange between Council’s enforcement officers and the Tenant (see above at [53]), and the terms of the lease agreement proferred by the Tenant. I find Ms Clarke to be a credible witness, and accept her version of events.

72. Even if the Applicant’s submissions are accepted and the Premises are no longer used as a boarding house, based on the above findings there was a period of time when the Order was not complied with – the period between the expiry of the compliance date in February, and the date the lease agreement referred to at [54] was entered into between Mr Cheong’s wife and her relative.

73. The evidence is that at the time of the issuing of the Order and throughout the currency of the period for compliance, and beyond that time, Mr Cheong continued to operate the Premises as a boarding house. I am thus satisfied that the formal requirements for the making of the Order were met and that the Order was validly and appropriately made. The Applicant had sufficient opportunity to comply with its terms. The evidence is that he did not do so within the timeframe ordered. The notice continues to have effect until such time as it is complied with: s 121 ZQ EPA Act. It is a matter for the Council as to what if anything it proposes to do with respect to any period of non-compliance after the expiry of the period set for compliance.

74. Mr Martin expressed the view that as at the date of the hearing he still believed the property was used as a boarding house, as there were still locks on two bedroom doors; and you would not normally have two laundries and two kitchens in a dwelling house. The Council also relies upon Mr Shields’ evidence that the persons he has observed as currently residing at the Premises do not appear to be of the same cultural group, relying upon the decisions noted above with respect to the presence of family groups. The Council further submitted that the common areas were very basic, bookshelves were empty, and there were two evacuation notices. A family would remove such items.

75. I do not dispute the Council’s submission that Mr Cheong had the opportunity to adduce further evidence in support of his position. He could have called the persons who are said to be the tenants in the property pursuant to what Mr Cheong describes as the current lease agreement, but did not do so. When questioned as to the identity of the persons staying in the property, he was unable to provide their names. Mr Cheong said the use of the premises as a boarding house ceased in June, but a room was advertised at that date. That action is inconsistent with renting the entire property. Mr Cheong is also unaware of who is currently residing in the house.

76. However, at the time of the hearing, which included the site inspection of the Premises set out in some detail in this judgment, nothing I saw convinced me that the residential agreement was not operative. From my observations on the Site, it would appear that Mr Cheong has taken several steps to remove the indicia which pointed to the use of the Premises as a boarding house, such as the removal of numbers above the bedroom doors, and the “Exit” signs which had been evident on Mr Martin’s inspection in August 2016. He appears to have complied with the Order.

77. Since 5 June 2017, Mr Cheong appears to have sufficiently complied with the Order (s 121 ZK(d)), which leads me to conclude that the Order has no future work to do. The Appeal should be dismissed.

Orders

78. The Orders of the Court are:

1. The Appeal is dismissed.

2. The Exhibits, save for A, B, 2 and 4, are returned.

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Rosemary Martin

Senior Commissioner

Decision last updated: 24 October 2017