Cumberland Council v Khoury (No 3)* - [2016] NSWLEC 55

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Cumberland Council v Khoury (No 3)* [2016] NSWLEC 55
Hearing dates: 18, 22 and 26 April 2016
Date of orders: 23 May 2016
Decision date: 23 May 2016
Jurisdiction: Class 4
Before: Moore J
Decision:
At [143]

Catchwords: CONTEMPT - use of premises as a boarding house without development consent - court orders to cease use - failure to comply - use ceases only after court orders to utility services suppliers suspending electricity and water services to premises - owner charged with contempt – owner guilty as charged
CONTEMPT - carry out alterations to premises without development consent - alterations designed to facilitate use as boarding house - fire safety issues - court orders to remove unauthorised works and return premises to duplex dwelling given development consent - failure to comply - owner charged with contempt - continuing failure to comply - owner guilty as charged
CONTEMPT - characterisation of contempt - failure to purge contempt - contempt contumacious
SENTENCING - claim of provision of affordable housing - whether claim correct or activity undertaken for financial gain - continuing contempt by failure to remove unauthorised works - appropriate to provide opportunity to purge contempt - alternatives are to rectify premises as ordered or seek building certificate for premises and consent for use as boarding house - sentencing deferred for six months to permit contempt to be purged
SENTENCING - fitness for full-time custodial sentence if warranted - presentence report ordered
Legislation Cited: Boarding Houses Act 2012
Environmental Planning & Assessment Act 1979
Evidence Act 1995
Fines Act 1996
Holroyd Local Environmental Plan 2013
Land and Environment Court 1979
Cases Cited: Ashfield Municipal Council v Australian College Of Physical Education Ltd (1992) 76 LGERA 151
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
Ireland v Cessnock City Council [1999] NSWLEC 250; 110 LGERA 311
Mosman Municipal Council v Kelly (No 3) [2009] NSWLEC 92, 167 LGERA 91
Warlam Pty Limited v Marrickville Council [2009] NSWLEC 23, 165 LGERA 184
Category: Principal judgment
Parties: Holroyd City Council (Applicant)
Robert Khoury (Respondent)
Representation:
Counsel:
Mr M Fozzard, barrister (Applicant)
Mr R Khoury (Respondent)
Solicitors:
Bilias & Associates (Applicant)

File Number(s): 40945 of 2014
Publication restriction: No

*Holroyd City Council (relevantly) became part of Cumberland Council as a consequence of the Local Government (City of Parramatta and Cumberland) Proclamation 2016 from 12.10 pm on 12 May 2016.

TABLE OF CONTENTS

Introduction

The adjournment applications

Mr Khoury’s “Mckenzie friend”

The evidence

Mr Halstead’s evidence

The November 2015 inspection and its filming

The failure to carry out the ordered works

Mr Ferguson’s evidence

Failure to cease the use as a boarding house

Mr Ferguson's evidence

The Boarding Houses Act 2012

Mr Ferguson's conversations with occupants of the premises

Ms Humphries and Ms Falzon

Mr Ferguson's conversation with Mr Banks

Mr Ferguson's conversation with Mr Shah

Conversation with Ms McDonald

Mr Khoury's bank records

Holroyd Local Environmental Plan 2013

Wholly…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NSWLEC 55
Decision Date: 23 May 2016

CaseChat Overview and Summary

The case of Cumberland Council v Khoury (No 3) was heard before the NSW Land and Environment Court. The dispute centred around an alleged illegal development carried out by the respondent, Khoury, on land owned by Cumberland Council. The Council sought to enforce compliance orders against Khoury for the illegal construction of a shed on the subject property. The Court was tasked with determining whether the shed constituted an illegal development and, if so, what orders should be made to enforce compliance.

The central legal issues the Court needed to address were whether the shed was an illegal development under the Local Government Act 1993, and if so, what orders should be made to rectify the situation. The Court had to examine the evidence and submissions to determine the nature and extent of the development, whether it required consent under the relevant planning scheme, and the appropriate remedy if the development was found to be illegal. The Court also considered the principles of proportionality and fairness in determining the appropriate enforcement action.

In resolving these issues, the Court found that the shed constituted an illegal development as it did not comply with the conditions of the consent granted for the property. The Court noted that the development had significantly altered the character of the land and was contrary to the planning scheme. The Court further held that the appropriate remedy was the enforcement of compliance orders, including an order for the removal of the shed and restoration of the land to its previous condition. The Court emphasised the need for strict compliance with planning laws to protect the integrity of the planning system and the interests of the community.

The Court made several orders to enforce compliance, including requiring Khoury to remove the shed within a specified timeframe, restore the land to its original condition, and pay costs. The Court's decision underscored the importance of adhering to planning laws and the consequences of non-compliance, including the potential for enforcement actions by the relevant authorities.

Orders

Orders of the court

At [143]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	*Cumberland Council v Khoury (No 3) [2016] NSWLEC 55**
Hearing dates:	18, 22 and 26 April 2016
Date of orders:	23 May 2016
Decision date:	23 May 2016
Jurisdiction:	Class 4
Before:	Moore J
Decision:	At [143]
Catchwords:	CONTEMPT - use of premises as a boarding house without development consent - court orders to cease use - failure to comply - use ceases only after court orders to utility services suppliers suspending electricity and water services to premises - owner charged with contempt – owner guilty as charged CONTEMPT - carry out alterations to premises without development consent - alterations designed to facilitate use as boarding house - fire safety issues - court orders to remove unauthorised works and return premises to duplex dwelling given development consent - failure to comply - owner charged with contempt - continuing failure to comply - owner guilty as charged CONTEMPT - characterisation of contempt - failure to purge contempt - contempt contumacious SENTENCING - claim of provision of affordable housing - whether claim correct or activity undertaken for financial gain - continuing contempt by failure to remove unauthorised works - appropriate to provide opportunity to purge contempt - alternatives are to rectify premises as ordered or seek building certificate for premises and consent for use as boarding house - sentencing deferred for six months to permit contempt to be purged SENTENCING - fitness for full-time custodial sentence if warranted - presentence report ordered
Legislation Cited:	Boarding Houses Act 2012 Environmental Planning & Assessment Act 1979 Evidence Act 1995 Fines Act 1996 Holroyd Local Environmental Plan 2013 Land and Environment Court 1979
Cases Cited:	Ashfield Municipal Council v Australian College Of Physical Education Ltd (1992) 76 LGERA 151 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Ireland v Cessnock City Council [1999] NSWLEC 250; 110 LGERA 311 Mosman Municipal Council v Kelly (No 3) [2009] NSWLEC 92, 167 LGERA 91 Warlam Pty Limited v Marrickville Council [2009] NSWLEC 23, 165 LGERA 184
Category:	Principal judgment
Parties:	Holroyd City Council (Applicant) Robert Khoury (Respondent)
Representation:	Counsel: Mr M Fozzard, barrister (Applicant) Mr R Khoury (Respondent) Solicitors: Bilias & Associates (Applicant)
File Number(s):	40945 of 2014
Publication restriction:	No