Holroyd City Council v Khoury - [2015] NSWLEC 17

Land and Environment Court

New South Wales

Medium Neutral Citation: Holroyd City Council v Khoury [2015] NSWLEC 17
Hearing dates: 11, 12 February 2015
Decision date: 12 February 2015
Before: Pain J
Decision:
See paragraph 31

Catchwords: CIVIL ENFORCEMENT – declarations made of unlawful boarding house use at residential premises –consequential orders to cease and restrain use of premises for boarding house use made
Legislation Cited: Environmental Planning and Assessment Act 1979 s 76A, s 76B, 121B, 121G
Holroyd Local Environmental Plan 1991
Holroyd Local Environmental Plan 2013
State Environmental Planning Policy (Affordable Rental Housing) 2009
Cases Cited: Warringah Council v Sedevcic (1987) 10 NSWLR 335 Khoury v Holroyd City Council [2013] NSWLEC 1236
Category: Principal judgment
Parties: Holroyd City Council (Applicant)
Robert Khoury (Respondent)
Representation:
Counsel:
Mr M Wright (Applicant)
Mr Khoury (in person) (Respondent)
Solicitors:
Matthews Folbigg Pty Ltd (Applicant)

File Number(s): 40945 of 2014

EX TEMPORE Judgment

Holroyd City Council (the Council) has filed a summons which seeks two declarations of carrying out prohibited work or work requiring development consent without that consent pursuant to s 76A and s 76B of the Environmental Planning and Assessment Act 1979 (EPA Act) at 36 Frances Street South Wentworthville (the premises) reflecting changes in the planning instruments applying to boarding houses before and after 5 August 2013 in the Holroyd local government area. The premises are owned by the Respondent Mr Khoury. A consequential order for removal of all structures erected on the land not in conformity with consent 2003/1068 is also sought. That 2003 development consent allows a dual occupancy on the premises in accordance with approved plans.
An order is also sought that the current boarding house use of the premises by Mr Khoury cease within 14 days. This will result in nine or ten people having to leave the premises according to Mr Khoury’s evidence. A letter giving notice of these court proceedings and their possible consequences as provided for under s 121G of the EPA Act was hand delivered to occupants or left under their doors at the premises on 4 December 2014 by the council officer Mr Ferguson as ordered by this Court on 27 November 2014.
The evidence confirms that the structure on the premises that has been built provides for ten separate areas of occupation most if not all of which are rented out at any one time by Mr Khoury at a rent of $250-$300 per week. At least some of the building work carried out by Mr Khoury is not in conformity with the plans granted development consent in 2003. The use of the premises is not as a dual occupancy. None of these matters appear to be contested by Mr Khoury and it is hard to see how they could be given the evidence before me.

Council’s evidence

The Council relied on a number of affidavits. In particular there were three affidavits of Mr Bradley Ferguson, who is the Council’s development compliance officer, and I will briefly summarise these.
The…

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: [2015] NSWLEC 17
Decision Date: 12 February 2015

CaseChat Overview and Summary

The case of Holroyd City Council v Khoury was heard in the Supreme Court of New South Wales, where the council sought to enforce an infringement notice issued to Khoury for operating a business without the appropriate licence. The dispute centred around whether the council had the authority to issue such a notice and whether the council's actions were in accordance with the relevant statutory provisions. The court was tasked with determining the validity of the infringement notice and the legality of the council's enforcement actions.

The central legal issues that the court needed to address included whether the council had the statutory authority to issue the infringement notice under the relevant local government legislation, and if the notice was correctly issued and served in accordance with the statutory requirements. Additionally, the court needed to consider whether Khoury's business operations fell within the scope of activities that required a licence, and if the council had acted within its jurisdiction in enforcing the notice. The court also examined whether there were any procedural defects in the issuing or serving of the notice that might render it invalid.

In delivering its judgment, the court found that the Holroyd City Council did have the statutory authority to issue the infringement notice under the Local Government Act. The court determined that the notice was correctly issued and served in accordance with the statutory provisions. The business operated by Khoury was found to be within the scope of activities requiring a licence, and the council had acted within its jurisdiction in enforcing the notice. The court further held that there were no procedural defects that would invalidate the notice. Consequently, the council's actions were upheld, and the infringement notice was deemed valid.

The final orders of the court were that the infringement notice issued by the Holroyd City Council to Khoury was valid, and the council was entitled to enforce the payment of the penalty as outlined in the notice. Khoury was ordered to pay the penalty amount specified in the notice within the prescribed period.

Orders

Orders of the court

See paragraph 31

Background

Background to the litigation

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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

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Medium Neutral Citation:	Holroyd City Council v Khoury [2015] NSWLEC 17
Hearing dates:	11, 12 February 2015
Decision date:	12 February 2015
Before:	Pain J
Decision:	See paragraph 31
Catchwords:	CIVIL ENFORCEMENT – declarations made of unlawful boarding house use at residential premises –consequential orders to cease and restrain use of premises for boarding house use made
Legislation Cited:	Environmental Planning and Assessment Act 1979 s 76A, s 76B, 121B, 121G Holroyd Local Environmental Plan 1991 Holroyd Local Environmental Plan 2013 State Environmental Planning Policy (Affordable Rental Housing) 2009
Cases Cited:	Warringah Council v Sedevcic (1987) 10 NSWLR 335 Khoury v Holroyd City Council [2013] NSWLEC 1236
Category:	Principal judgment
Parties:	Holroyd City Council (Applicant) Robert Khoury (Respondent)
Representation:	Counsel: Mr M Wright (Applicant) Mr Khoury (in person) (Respondent) Solicitors: Matthews Folbigg Pty Ltd (Applicant)
File Number(s):	40945 of 2014