Holroyd City Council v Khoury

[2016] NSWLEC 18

Land and Environment Court

New South Wales

Medium Neutral Citation:

Holroyd City Council v Khoury [2016] NSWLEC 18

Hearing dates:

10 March 2016

Date of orders:

10 March 2016

Decision date:

10 March 2016

Jurisdiction:

Class 1

Before:

Pain J

Decision:

(1) Pursuant to s 121ZS of the Environmental Planning and Assessment Act 1979 Sydney Water and Endeavour Energy must cease to provide water and electricity services to 36 Francis Street, Wentworthville for a period of three months from 14 days from the date of this order.

 

(2) Service of this order on Sydney Water and Endeavour Energy shall be effected by sending a copy of this order by email and registered post.

 

(3) The Respondent must pay the Applicants costs as agreed or assessed.

 (4) Exhibits may be returned.

Catchwords:

ORDER – utility order made under s 121ZS of the Environmental Planning and Assessment Act 1979

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 121B, 121ZS
Environmental Planning and Assessment Regulation 2000, cl 285
Holroyd Local Environmental Plan 2013, Dictionary
Land and Environment Court Act 1979, s 17(d)
Land and Environment Court Rules 2007, r 3.7
Uniform Civil Procedure Rules 2005, r 10.14

Cases Cited:

Holroyd City Council v Khoury [2015] NSWLEC 17
Khoury v Holroyd City Council [2013] NSWLEC 1236

Category:

Principal judgment

Parties:

Holroyd City Council (Applicant)
Robert Khoury (Respondent)

Representation:

COUNSEL:
M Fozzard (Applicant)
N/A (Respondent)

  SOLICITORS:
Bilias and Associates (Applicant)
N/A (Respondent)

File Number(s):

11249 of 2015

EX Tempore Judgment

1. The Applicant (“Council”) brings an application for a utility order pursuant to s 121ZS of the Environmental Planning and Assessment Act 1979 (NSW) (“the EPA Act”) in relation to premises at 36 Francis Street Wentworthville (“premises”). Mr Robert Khoury is the owner of the premises. Mr Khoury did not appear at the hearing today which was adjourned from 23 February 2016. Mr Khoury also did not appear at the earlier part hearing on 23 February 2016. Mr Khoury was called outside the Court on both occasions. Mr Khoury received notice of the adjourned hearing today as attested to in the affidavit of Mr Mercouris dated 9 March 2016 (Ex J).

2. The Council seeks the following orders:

1. Pursuant to s 121ZS of the Environmental Planning and Assessment Act 1979 a provider of water or electricity to the subject premises must cease to provide those services for a period of three months from the date of this order;

2.   Service of this order on the provider of utility services shall be effected by sending a copy of this order by email and registered post;

3.   Costs;

4.   Other order as the Court sees fit;

3. The Council relies upon the following evidence:

1. affidavit of Bradley Ferguson, Holroyd City Council Development Compliance Officer, sworn 22 December 2015 and Exhibit HC-1 at pars 8, 13, 17, 19, 20-27, 28, 32, 34 and 36 and tabs 2 and 7, attesting that the Respondent is the registered proprietor of the premises. The affidavit was also relied on for evidence of conversations between the Mr Ferguson and occupants of the premises regarding their length of stay at the premises and the identity of the landlord, with three of the occupants spoken to indicating that they had resided at the premises for three months or more. The affidavit was also relied on for evidence of the layout of the premises (Exhibit A);

2. affidavit of Bradley Ferguson sworn 22 February 2016 at par 62, attesting that the unlawful use of the premises as a boarding house is ongoing (Exhibit B);

3. affidavit of Mark Stephenson, Senior Development Planner at Holroyd City Council, sworn 22 February 2016 and annexures at pars 15 and 22 and p 59 of tab 4, annexing the definition of a boarding house as contained in the Holroyd Local Environment Plan 1991 (Exhibit C);

4. expert report of Nathan Halstead, accredited certifier, 14 December 2015 at pp 6-7 and pars 3.1.1, 3.1.2, 6.1 and 6.3, which gives evidence of the unlawful use of the premises as a boarding house, identifies that due to the current use of the premises potential fire and life safety risks are very high and that the minimum health and amenity standards do not meet community expectations or the requirements of the Building Code of Australia 2015 (Exhibit D);

5. affidavit of Angelo Bilias, solicitor for the Applicant, sworn 9 March 2015, provides evidence of the service of the proposed order on the relevant utilities companies, Sydney Water and Endeavour Energy, supplemented by oral evidence in Court today as to his communications with the appropriate companies (Exhibit E);

6. affidavit of Peter Prineas, licenced process server, sworn 29 December 2015, giving evidence of a conversation that took place between Mr Prineas and the Respondent on 29 December 2015 (Exhibit F);

7. affidavit of Malcolm Grace, Licenced Process Server, sworn 27 January 2016, giving evidence demonstrating that the Council partly complied with the court orders of 21 January 2016 relating to substituted service of a notice of hearing by attaching it to the front door of the premises, and placing a sealed envelope on the doorstep containing a letter from the solicitors for the Applicant, the Notice of Motion, the Affidavit of Bradley Ferguson sworn 22 December 2015 and the Expert Report of Nathan Halstead (Exhibit G);

8. affidavit of Angelo Bilias sworn 5 February 2016, giving evidence that the Council complied with the court orders of 29 January 2016 relating to further substituted service by sending an SMS to the Respondent containing the notice of hearing, and sending an email to the Respondent containing the letter from the solicitors for the Applicant, the Notice of Motion, the Affidavit of Bradley Ferguson sworn 22 December 2015 and the Expert Report of Nathan Halstead (Exhibit H);

9. affidavit of Peter Mercouris, licenced process server, sworn 9 March 2016, giving evidence that the Applicant complied with the court orders of 23 February 2016 by bringing the orders and notice of hearing to the attention of the Respondent (Exhibit J);

10. affidavit of Angelo Bilias sworn 22 February 2016, giving evidence that the Respondent was aware of the hearing of 23 February 2016 in a telephone call between Mr Bilias and the Respondent on 22 February 2016 (Exhibit K); and

11. affidavit of Malcolm Grace sworn 22 February 2016, attesting that notice of the hearing of 23 February 2016 was given to the occupants of the premises on 22 February 2016 by affixing a notice to the occupants on the front door of the premises and by conversation with one occupant (Exhibit L).

4. The Council submits that a s 121B order issued under the EPA Act restraining the use of the premises as a boarding house has not been complied with by the Respondent Mr Khoury and that the building continues to be used for an unlawful purpose in circumstances where occupants’ safety is at risk. In this context, the Council contends that by shutting off the water and power the use is more likely to cease and any immediate risk to occupants of the premises is addressed.

The Statutory Framework under the EPA Act

5. The Land and Environment Court (“the Court”) has the power to make utility orders pursuant to s 121ZS(3) of the EPA Act. The section is directed to a failure to comply with an order to cease the use of premises for specified classes of residential premises, as provided for in s 121ZS(1)(b). The subject premises are currently zoned R2, pursuant to the Holroyd Local Environment Plan 2013 (“the LEP”).

6. Section 121ZS(10) provides that a utility order must not be made for a premises used for residential purposes unless the regulations authorise such an order. Clause 285(2 of the Environmental Planning and Assessment Regulation 2000 prescribes “boarding house” as an authorised use for the purposes of s 121ZS(10) of the EPA Act.

7. “Boarding house” is defined in the LEP as:

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.

8. Under s 121ZS(4) the Court must not make a utility order unless satisfied that the failure has caused or is likely to cause a significant adverse impact on health, safety or public amenity. The Council is seeking to establish that there is a significant fire risk at the premises resulting from their use as a boarding house.

9. Section 121ZS(7) provides that the utilities order must not be made unless at least seven days has been given to a provider of water, electricity or gas, and any owner or occupier of the premises.

Chronology

10. On 13 April 2003 a development application was received for a duplex development. Development Consent was granted on 22 October 2003 for “the erection of a part single and part two-storey attached dual occupancy” development.

11. On 5 April 2013 the Council received a complaint that the use of the premises posed a fire and safety risk.

12. On 7 May 2013 the Council issued a Notice of Intention to give an order in respect to the unauthorised use of the premises.

13. On 23 May 2013 the Council issued an order pursuant to s 121B of the EPA Act (“the s 121B Order”).

14. The Respondent appealed against the Order to the Court (10472 of 2013) (“the Appeal proceedings”).

15. The Appeal proceedings were decided on 11 December 2013 (Khoury v Holroyd City Council [2013] NSWLEC 1236) with the appeal dismissed and an order made restraining the use of the premises as a boarding house.

16. The Council served a copy of the sealed orders on the Respondent.

17. Between February 2014 and October 2014 the Council attempted to gain entry into the building.

18. On 18 November 2014 the Council commenced class 4 proceedings (40945 of 2014) against the Respondent (“the Class 4 proceedings”).

19. On 12 February 2015 the Court made a decision in the class 4 proceedings (Holroyd City Council v Khoury [2015] NSWLEC 17) that the premises continued to be used unlawfully for a boarding house.

The Use continues and poses a risk

20. On 23 October 2015 Mr Ferguson posted a notice of entry to the Respondent.

21. On 11 November 2015 the Council obtained a search warrant of the premises from the Local Court.

22. On 12 November 2015 the Council officers and Mr Nathan Halstead in the company of Police Officers inspected the premises. The inspection was recorded by a Council officer operating a digital video camera.

23. The premises have been divided into 13 separate units, spread over three levels.

24. Mr Ferguson observed in Unit 1 that there was a separate fridge, cupboard, kitchen sink, bathroom and living area with a television. Mr Ferguson also observed that that room contained clothing and food stuffs.

25. Mr Ferguson observed that this unit contained two bedrooms, a lounge/dining, bathroom and kitchen. Mr Ferguson had a conversation with two unrelated occupants of Unit 2. One person stated that:

1. she had lived there for two weeks and that she was homeless;

2. she knew of another person living upstairs and another one next door;

3. they paid “Rob” each Tuesday; and

4. they had found out about the premises on “Gumtree”.

26. Mr Ferguson then proceeded upstairs and observed that there was a separate room containing two bedrooms, a lounge/dining area, bathroom and kitchen, as well as food stuffs and a fridge. At that time, Mr Ferguson had a conversation with another occupant, who stated:

1. he had lived there for about 3 months with his brother;

2. he had seen about 4 people living in the premises; and

3. that he paid the owner “Robert something”.

27. Mr Ferguson made the further observation that there was a separate lounge/dining, bathroom and kitchenette in Unit 9, and that there was food stuffs, a fridge, and it appeared that somebody was sleeping in that room. Mr Ferguson made the same observation about another area, Unit 8, and similarly Unit 7.

28. Mr Ferguson then proceeded to another area, Unit 6, where he had a conversation with an occupier known to him. The occupant stated that he had lived there for about six months, and found out about the premises on the internet through “Gumtree”. He also said that there was a common washing machine.

29. Mr Ferguson has conducted a search of the Council records and there is no approval to use the premises as a boarding house.

30. In the opinion of Mr Ferguson, based on his inspection, there are 10 separate units within the premises, nine of which were being occupied at the time of his inspection.

31. Mr Ferguson also formed the view that at the time of his inspection, the premises had an identical configuration to that which was observed on 30 May 2014, and that in his opinion the s 121B order has not been complied with.

32. Mr Halstead identifies each separate unit as being a “sole occupancy unit”. Mr Halstead also observed that since his last inspection the building remains not being used in accordance with the approved use or in accordance with the approved plan.

33. Mr Halstead formed the opinion that the current use “is placing people at serious risk of illness or injury” and such use of the premises “should be immediately stopped as the potential fire and life safety risks are very high”.

The Respondent is aware of the s 121B order and these proceedings

34. The Respondent Mr Khoury can be assumed to be aware of the s 121B order issued by the Council because:

1. Mr Khoury lodged an appeal against such an order and appeared in the Appeal proceedings; and

2. the orders made by the Court in the appeal proceedings were served upon Mr Khoury.

35. Mr Khoury is aware of the Council’s intention to proceed to a hearing of these orders. The Council on 21 January 2016 made an application for substituted service (in doing so the Council relied upon the following affidavit evidence: affidavit of Peter Prineas of 29 December 2015; affidavit of Peter Mercouris 5 January 2016; affidavit of Brad Ferguson 12 January 2016). On 21 January 2016 the Court made substituted service orders under r 10.14 of the Uniform Civil Procedure Rules 2005 (NSW).

36. The Applicant attended to orders 1(a) and 1(d) made on 21 January 2016. The affidavit of Malcom Colin Grace sworn 27 January 2016 attests to the actions. Mr Grace placed a sealed envelope at the doorstep in compliance with order 1(a) of 21 January 2016, and affixed a notice to the front door in compliance in order 1(d) of 21 January 2016. Mr Grace forwarded a text message to Mr Khoury and he received the reply, “Your lying”.

37. The Applicant did not fully satisfy orders 1(b) and 1(c). Further orders for substituted service were made on 29 January 2016. The affidavit of Mr Angelo Bilias 5 February 2016 attests to the actions in respect to these later orders.

38. On 23 February 2016 the matter was before the Court and the Court made further orders for bringing the proceedings to the notice of Mr Khoury. The affidavit of Mr Peter Mercouris 9 March 2016 attests to the actions in respect to these later orders.

Council has established basis for utility order to be made

39. There is more than sufficient evidence in the affidavit of Mr Ferguson and the report of Mr Halstead summarised above to establish that the existing use of the premises is as a boarding house. There are rooms being rented which are separate let-in lodgings with private kitchen and bathroom. There was evidence of three-month up to six-month stay periods from at least two occupants and there is at least one identifiable communal area. This evidence satisfies the statutory definition in the LEP that the premises are being used as a boarding house in contravention of the s 121B order confirmed by the Court on 13 May 2013.

40. The extent of the ongoing unlawful use since at least the Court order made in May 2013 in the Class 1 appeal proceedings was confirmed in the Class 4 proceedings in February 2015.

41. The significant fire safety risk identified by Mr Halstead justifies the granting of a utility order in the terms sought by the Council. Subsection (4) of s 121ZS is satisfied. Subsection 7 provides that at least seven days’ notice needs to be given to a utility provider. The affidavit of Angelo Bilias sworn 9 March 2016 and his oral evidence attests to the actions taken in compliance with this provision. Sufficient notice has also been given to the owner and Respondent Mr Khoury and the occupants as identified in the affidavits of Mr Grace sworn 22 February 2016 (Exhibit L) and Mr Mercouris sworn 9 March 2016 (Exhibit J).

42. I also agree with the submission of the Council that without the coercive nature of a utility order, the Court could not be confident that the Respondent will comply with the s 121B order and cease the unlawful boarding-house use. There is no evidence to support such a conclusion. Mr Khoury has not attended at any stage of these proceedings to put matters in his favour to the Court.

Costs

43. The applicant Council seeks its costs of this application and for the reasons it has given I consider such an order ought be made.

44. In Class 1 proceedings, the costs discretion must be exercised in accordance with r 3.7 of the Land and Environment Court Rules 2007. Rule 3.7(2) provides that “[t]he Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances”.

45. The Respondent has failed to comply with the s 121B order over a lengthy period despite having full knowledge of such orders. The Respondent’s conduct prior to the commencement of proceedings left the Applicant with little choice but to take legal action. His actions or lack thereof invited the proceedings.

46. Secondly, the Respondent has not taken any active part in these proceedings. Indeed in answer to at least one text message the Respondent replied “Your Lying”. Such conduct during the proceedings is unreasonable.

47. It is fair and reasonable that the Respondent pay the Applicants costs as agreed or assessed.

Orders

48. The Court orders:

1. Pursuant to s 121ZS of the Environmental Planning and Assessment Act 1979 Sydney Water and Endeavour Energy must cease to provide water and electricity services to 36 Francis Street, Wentworthville for a period of three months from 14 days from the date of this order.

2. Service of this order on Sydney Water and Endeavour Energy shall be effected by sending a copy of this order by email and registered post.

3. The Respondent must pay the Applicants costs as agreed or assessed.

4. Exhibits may be returned.

Decision last updated: 18 March 2016