Gold Coast City Council v Christophi
[2014] QPEC 62
•27 October 2014
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Gold Coast City Council v Christophi [2014] QPEC 62
PARTIES:
GOLD COAST CITY COUNCIL
(applicant)v
TALAAT CHRISTOPHI
(respondent)FILE NO/S:
388/13
DIVISION:
Planning & Environment Court
PROCEEDING:
Application
ORIGINATING COURT:
Planning & Environment Court at Brisbane
DELIVERED ON:
27 October 2014
DELIVERED AT:
Brisbane
HEARING DATE:
20-22 October 2014
JUDGE:
Everson DCJ
ORDER:
1. The respondent is in contempt of the order of Rackemann DCJ dated 23 July 2013;
2. The respondent is fined $5,000.00;
3. I declare that the letting of the individual rooms in the house is a use for a purpose other than a single detached self-contained dwelling (as defined in the applicant’s planning scheme) for the exclusive use of one household only;
4. I order that the unlawful use of the house cease within 28 days;
5. The respondent is to pay the applicant’s costs of and incidental to the application on the standard basis.
CATCHWORDS:
ENVIRONMENT AND PLANNING – CONTEMPT – MEANING OF “DWELLING” – MEANING OF “HOUSEHOLD” - where an application seeks that the respondent be punished for contempt of court constituted by his contravention of a previous order - where since the making of the order, the respondent has continued to individually rent out rooms in the house pursuant to separate rooming agreements – whether the letting of the individual rooms in the premises is a use for a purpose other than a single detached self-contained dwelling for the exclusive use of one household only.
District Court of Queensland Act 1967 (Qld) s 129.
Penalties and Sentences Act 1992 (Qld).
Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 15, 16.
Sustainable Planning Act 2009 (Qld) s 439.
Uniform Civil Procedure Rules 1999 (Qld) rr 390, 930.Bundaberg Regional Council v Lammi & Anor [2014] QPEC 52, considered.
Kingsland v McIndoe [1989] VR 273 at 276, applied.
Lade & Co Pty Ltd v Black [2006] 2 Qd R 531, applied.
Noosa Shire Council v Staley [2002] QPEC 018, applied.COUNSEL:
Mr Ure for the applicant
The respondent appeared on his own behalf
SOLICITORS:
MacDonnells Law for the applicant
Introduction
This is an application seeking that the respondent be punished for contempt of court constituted by his contravention of orders made by his Honour Judge Rackemann in this Court on 22 July 2013. The applicant also seeks such further or other order as the Court may deem appropriate and costs.
By the commencement of the hearing the focus of the application had narrowed to paragraph 5 of the order, which is in the following terms:
“The Respondent is not to use the premises identified in the Originating Application for any purpose other than a single detached self-contained ‘dwelling’ (as defined in the 2003 Living City Planning Scheme) for the exclusive use of one household only, unless otherwise authorised by an effective development permit for a material change of use or otherwise authorised by law.”
Relevant provisions of the applicant’s planning scheme
In the 2003 planning scheme of the applicant “Dwelling” is defined as:
“Any building or part of a building comprising a self-contained unit used by, or intended for the exclusive residential use of, one household. The term includes outbuildings normal to a dwelling. The term includes the keeping of domestic animals as pets.”
Conversely, “Hostel Accommodation” is relevantly defined as:
“Any premises used or intended for use for the accommodation of more than four unrelated persons, where bathroom or kitchen facilities are shared and where such premises are managed in the nature of a boarding house, guest house, lodging house, youth hostel or backpackers’ inn.”
The term “household” is not defined in the planning scheme. In Noosa Shire Council v Staley[1] McLauchlan QC DCJ stated that in his view a household had “implications of domesticity and permanence”.[2] In support of this proposition, his Honour cited a passage from the judgment of Gobbo J in Kingsland v McIndoe[3], part of which is:
“There is a series of English cases dealing with the question of whether or not multiple occupants of the house can be said to form a ‘single household’ for the purposes of the Housing Act. May J. in London Borough of Hackney v Ezedinma (1981) 3 All E.R. 438 stated, at p 441, that ‘premises comprising a number of separate rooms let singly ... cannot be said to form a single household’.
In Simmons v Pizzey (1979) AC37, Lord Hailsham considered the Oxford Dictionary and the Words and Phrases definitions of the term ‘household’ and concluded, at pp 441-2: ‘I do not find any of these references particularly helpful except to make clear to me that I would have supposed in any case that both the expression ‘household’ and membership of it is a question of fact and degree, there being no certain indicia the presence of absence of any of which is by itself conclusive.’”
[1][2002] QPEC 018.
[2]Ibid at [11].
[3][1989] VR 273 at 276.
The conduct
The respondent is the owner of a house and land at 8 Augusta Court, Coombabah, which is the premises referred to in paragraph 5 of the order (“the house”). The use of the house by the respondent resulted in the applicant taking enforcement action against the respondent which culminated in the filing of an Originating Application on 4 February 2013 seeking declarations and enforcement orders to address the unlawful use of the house and unlawful building work which had been carried out by the respondent. Following a mediation, Rackemann DCJ made orders which were not opposed by the respondent. In addition to the order in paragraph 5 the subject of this application (“the order”), the respondent was required to remove certain building work and pay the applicant’s costs of and incidental to the proceeding in the sum of $21,000.
Since the making of the order, the respondent has continued to individually rent out rooms in the house pursuant to separate rooming agreements. The tenants are required to abide by “house rules” and share the kitchen and laundry facilities of the house. An example of a rooming accommodation agreement pursuant to the Residential Tenancies and Rooming Accommodation Act 2008 (“RTRAA”) utilised by the respondent is exhibited to the affidavit of the respondent filed on 19 September 2014. In s 16 of the RTRAA, a “rooming accommodation agreement” is defined as “an agreement under which a provider provides rooming accommodation to a resident in rental premises”. “Rooming accommodation” is defined in s 15 of the RTRAA in the following terms:
“(1)Rooming accommodation is accommodation occupied or available for occupation by residents, in return for the payment of rent, if each of the residents—
(a) has a right to occupy 1 or more rooms; and
(b) does not have a right to occupy the whole of the premises in which the rooms are situated; and
(c) does not occupy a self-contained unit; and
(d) shares other rooms, or facilities outside of the resident's room, with 1 or more of the other residents.
Example for paragraph (d)—
a boarding house in which each of the residents occupies a room and shares a bathroom, kitchen, dining room and common room with the other residents.
…”
A former tenant of the house, Mr Osborne, gave evidence that he resided at the house between approximately 10 October 2013 and 3 December 2013.[4] At the time he moved into the house, he was given keys to the front door and his room.[5] He was entitled to use all the main areas of the house but not the rooms occupied by the other tenants. The main areas of the house were the lounge room, the kitchen, the laundry, the bathroom, the toilet and the dining room.[6] During the time he lived there, there were, for a period, seven people residing in the house at the same time. He knew the christian names of three of them and the surname of one of them.[7] I accept the evidence of Mr Osborne without reservation. The impression I got was that there was very limited interaction between the residents of the house during the time he was there.
[4]Affidavit of Barry William Osborne filed 13 October 2014, para 2.
[5]Ibid, para 15.
[6]Ibid, para 17.
[7]Ibid, para 25, T2-20 lines 30-45; T2-21 lines 30-40.
Evidence was given on behalf of the respondent by his property manager, Elizabeth Beams, that there were currently four people other than the respondent residing at the house.[8] When she took up her appointment at the end of last year, there were six people residing at the house.[9] Different tenants came and went, staying for varying periods of time. Despite giving sworn testimony that he had also been residing at the house for three or four months[10], the respondent sought to resile from this in submissions.[11] I did not find him to be a credible or reliable witness.
[8]T2-61 lines 5-25.
[9]T2-62.
[10]T2-56 lines 40-45.
[11]T3-26.
Prior to bringing the application for contempt, the applicant’s solicitor wrote to the respondent on 26 July 2013, warning him that he was using the house in breach of the order in the following terms:
“To ensure that there is no confusion regarding the status of the final Order, we confirm that you are legally required to comply with all requirements set out in the attached Order.
We put you on notice that compliance with the Order will be strictly enforced, and significant sanctions may be imposed in the event of any non-compliance, which will not be tolerated by our client.
…
Further, paragraph 5 of the Order states that you must not use the premises for any purpose other than a single detached self-contained ‘dwelling’ (as defined in the 2003 Living City Planning Scheme) for the exclusive use of one household only, unless otherwise authorised by an effective development permit for a material change of use or otherwise authorised by law.
The 2003 Living City Planning Scheme defines a ‘dwelling’ as ‘[a]ny building or part of a building comprising a self-contained unit used by, or intended for the exclusive residential use of, one household. The term includes outbuildings normal to a dwelling. The term includes the keeping of domestic animals as pets.’
It has been indicated that it is your intention to rent the premises out as ‘shared rental accommodation’. We put you on notice that it is our view that the current tenancy arrangement, comprising unrelated individuals who currently reside in separate self-contained components of the premises, does not comply with the Order and the legal requirement that you use the premises as a ‘single detached self-contained dwelling’.
We strongly recommend that you seek legal advice as to whether any proposed rental arrangement will give rise to a breach of the 2003 Living City Planning Scheme or the Order.
Furthermore, we suggest that you make enquiries as to any obligations you may have pursuant to Council’s local laws in respect of rental accommodation.”[12]
[12]Affidavit of Danielle Julie Sibenaler filed 27/6/14, Ex DJS1 pp 52-53.
In a subsequent letter to the respondent dated 5 November 2013, she stated:
“The Inspection and our own independent enquiries suggest that separate kitchen areas are being maintained, and that the Premises is currently being used in a manner consistent with that of hostel accommodation. We put you on notice that such use of the Premises constitutes a breach of paragraph 5 of the Order.
You are required to remedy the breach by ceasing to use the Premises as other than a single detached self-contained ‘dwelling’ (as defined in the 2003 Living City Planning Scheme) for the exclusive use of one household only.
Should you wish to use the Premises as anything other than a single detached self-contained ‘dwelling’ for the exclusive use of one household only, you will need to obtain a development permit for a material change of use prior to commencing that use.”[13]
[13]Ibid pp 127-128.
Despite being appropriately warned that his conduct was in breach of the order, the respondent maintained a defiant attitude. He did not seek to regularise the use by obtaining an appropriate development permit. He berated staff of the applicant, and at the hearing of the application, where he represented himself, he made scandalous and groundless allegations impugning the character and reputations of officers of the applicant, witnesses called on its behalf and the solicitor representing the applicant.
The relevant concept of contempt
Section 439 of the Sustainable Planning Act 2009 (“SPA”) provides for contempt and the contravention of orders of the Planning & Environment Court in the following terms:
“(1) A judge of the court has the same power to punish a person for contempt of the court as the judge has to punish a person for contempt of the District Court.
(2) The District Court of Queensland Act 1967, section 129, applies in relation to the court in the same way as it applies in relation to the District Court.
(3) If a person at any time contravenes an order of the court, the person is also taken to be in contempt of the court.”
Section 129 of the District Court of Queensland Act 1967 states that a person is in contempt of the District Court if, inter alia, the person without lawful excuse fails to comply with an order of the court. Thereafter, it is stated that a District Court judge has the same power to punish a contempt as a Supreme Court judge. Rule 930 of the Uniform Civil Procedure Rules 1999 (“UCPR”) states that if the court decides that the respondent has committed a contempt and the respondent is an individual, the court may punish the individual by making an order that may be made under the Penalties and Sentences Act 1992 (“PSA”). The PSA provides for penalties of imprisonment as well as the imposition of fines.[14]
[14]PSA s 44.
Keane JA observed uncontroversially in Lade & Co Pty Ltd v Black “because the sanction for any contempt is inevitably to some extent punitive, all contempts must be proved beyond reasonable doubt”.[15] As to the culpability of the respondent which must be established for a finding of contempt Keane JA observed:
“Because of the provisions of r 930 of the UCPR, there is in Queensland a statutory basis for the imposition of a fine which does not require that it be established that the breach of the order was worse than ‘casual, accidental or unintentional’.”[16]
[15][2006] 2 Qd R 531 at 551.
[16]Ibid at 552.
Conclusion
The use of the house in tenanting the individual bedrooms by the respondent utilising rooming accommodation agreements in the manner described above is in breach of paragraph 5 of the order. Having regard to the authorities canvassed above, it cannot be seriously contended that the house is being used for the exclusive use of one household only. The multiple occupants of the rooms leased in this way cannot be said to form a single household. Bedrooms in the house are let for varying periods to people who do not know, or necessarily interact with, the other tenants of the house. The use of the house in this way by the respondent carries no implications of domesticity and permanence on the evidence before me. Rather, there are a number of rooms let singly with shared common facilities. The house therefore does not fall within the definition of “dwelling” as defined in the applicant’s planning scheme. It follows that the respondent is using the house other than as a single detached self-contained dwelling for the exclusive use of one household in circumstances where this is unlawful. On the contrary he appears to be using the house for Hostel Accommodation as defined in the applicant’s planning scheme, although it is unnecessary for me to make a determination in this regard. The respondent has chosen to cynically breach the order for his financial gain. His conduct was deliberate and calculated and I therefore find beyond reasonable doubt that he was and remains in contempt of the order.
The applicant submits that a fine is an appropriate penalty for the contempt. Having regard to the authorities collected in the recent decision of Bundaberg Regional Council v Lammi & Anor[17], I am of the view that a fine in the sum of $5,000 is an appropriate penalty. I take into account the respondent’s lack of sophistication but also his cavalier attitude to endeavouring to make commercial gain from his unlawful use of the house. Regrettably, the respondent failed, in the course of his scandalous and rambling address at the conclusion of the hearing, to provide any indication of his capacity to pay a fine. However, I am satisfied, having regard to the commercial nature of the use he has conducted at the house and his evidence of the occupation of another property, that he is a man of some means and will be able to pay a fine in this amount. I refer the fine to the State Penalties Enforcement Registry for collection.
[17][2014] QPEC 52.
It is appropriate that I make further orders clarifying the legal status of the occupation of the house and providing for the cessation of the unlawful use in a way which does not cause undue hardship to the tenants. Accordingly, I declare that the renting of individual rooms in the house is not a use of a single self-contained dwelling for the exclusive use of one household only. I order that the unlawful use cease within 28 days.
The applicant also seeks its costs in respect of this application. Pursuant to s 457 of the SPA the costs of this application are in the discretion of the court. The respondent maintained a position which I have found amounted to being in contempt of the order despite being expressly warned that the applicant was of this view in the correspondence quoted above. It was suggested that he obtain legal advice. It appears that he did not. Rather, the respondent proceeded to the hearing, making scandalous allegations about the applicant’s officers, the solicitor acting for the applicant and other witnesses. These allegations were offensive, irrelevant and without foundation. Aside from this his case was barely arguable in any event. Accordingly the respondent should pay the applicant’s costs of and incidental to the application on the standard basis.
Orders
I therefore make the following orders:
1. The respondent is in contempt of the order of Rackemann DCJ dated 23 July 2013;
2. The respondent is fined $5,000.00;
3. I declare that the letting of the individual rooms in the house is a use for a purpose other than a single detached self-contained dwelling (as defined in the applicant’s planning scheme) for the exclusive use of one household only;
4. I order that the unlawful use of the house cease within 28 days;
5. The respondent is to pay the applicant’s costs of and incidental to the application on the standard basis.