Hornsby Shire Council v Monk

[2001] NSWLEC 248

Land and Environment Court

of New South Wales

CITATION:	Hornsby Shire Council v Monk [2001] NSWLEC 248
PARTIES:	APPLICANT: Hornsby Shire Council RESPONDENT: Monk
FILE NUMBER(S):	40194 of 2000
CORAM:	Bignold J
KEY ISSUES:	Injunctions and Declarations :- use of residential premises on a shared accommodation basis-whether use is multi unit housing
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
CASES CITED:	Jones v Sutherland Shire Council (1979) 40 LGRA 323 ; Slazengers (Aust) Pty Ltd v Emerson (1967) 69 SR (NSW) 144
DATES OF HEARING:	17 October 2001
DATE OF JUDGMENT:	10/25/2001
LEGAL REPRESENTATIVES:	APPLICANT: Mr P Clay, Barrister SOLICITORS McKees Legal Solutions RESPONDENT: In Person SOLICITORS N/A

JUDGMENT:

IN THE LAND AND

Matter No. 40194 of 2000

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

25 October 2001

HORNSBY SHIRE COUNCIL

Applicant

v

IAN LESLIE MONK

Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. By its amended class 4 application filed 3 August 2001, the Applicant (the Council) seeks declaratory and injunctive relief against the Respondent in respect of the use of residential premises owned and occupied by him, known as No 8 Stanley Road, Epping (the subject premises).

2. The Council claims that the current use of the subject premises is in breach of the Environmental Planning and Assessment Act 1979 (the EP&A Act) in that the use is properly categorised for planning purposes (and in particular, for the purposes of the Hornsby Shire Local Environmental Plan 1994 (the LEP) as:
(i.) multi-unit housing; or
(ii.) a boarding house without the provision of meals; or
(iii.) a house let in lodgings; or
(iv.) otherwise than as a dwelling-house

and there is no relevant development consent in force under the EP&A Act, that sanctions any of these uses: see s 76A(1), s 122 and s 123.

3. When the proceedings were commenced on 14 December 2000, they coincided with the commencement of a related Class 1 proceeding (Matter No 11192 of 2000) instituted by the Respondent appealing against the Council’s determination refusing development consent to the Respondent’s development application for use of the subject premises as multi-unit housing (comprising two dwellings).

4. However, following the discontinuance of that class 1 proceeding (with the Council’s consent) on 23 April 2001, the Council filed its amended class 4 application after an inspection had been carried out of the premises (pursuant to orders made by the Court by consent on 14 June 2001) by Council’s planning officers and Council’s Solicitors.

5. The Council’s amended claims include the alternative claims to the principal (original) claim that the subject premises were being used as multi-unit housing, namely that the premises were being used as either a boarding house without meals or as a house let in lodgings or otherwise than as a dwelling-house. These alternative claims allege uses that are prima facie prohibited by the LEP as it applies to the subject premises (whereas the principal claim alleges a use, namely multi-unit housing, that is a use that the LEP enables to be carried out, subject to the obtaining of development consent).

6. The Respondent, who was not legally represented in the proceedings has answered the Council’s several claims by saying that he has been using the subject premises as shared residential accommodation for the continuous period of 14 years prior to the Council commencing the class 4 proceedings, without any complaint from the Council until it had approached him in May 2000 and served him with notice of a proposed Order pursuant to the EP&A Act, s 121B (Item 15) requiring him “to remove the kitchen fittings and convert the flat back to form part of the dwelling-house and not used for separate accommodation”. (It is to be noted that Item 15 of s 121B is concerned with “compliance with development consent” and as will presently appear, the proposed order was seeking to enforce compliance with a condition of development consent granted by the Council in 1974 to a previous owner of the subject premises). Action in respect of that proposed statutory Order had been stayed when the Respondent submitted, at the invitation of the Council, a development application for consent to multi-unit housing comprising two dwellings.

7. It was following the Council’s determination in October 2000 refusing development consent that the Respondent had appealed to this Court pursuant to EP&A Act, s 97 but had subsequently discontinued the appeal because of the likely expense in prosecuting the appeal.

8. The Respondent submitted that the long and continuous user of the subject premises as shared residential accommodation should not, in the exercise of the Court’s jurisdiction, be terminated.

9. In the course of the hearing, the Council made a very significant forensic concession in that it accepted that if the Court were to find, on the basis of the Respondent’s unchallenged evidence, that the use of the subject premises was properly categorised as shared residential accommodation of a single dwelling house there would be no basis in law or in fact justifying the Council obtaining any of the claimed declaratory or injunctive relief (save possibly for an order requiring the removal of the kitchen fittings from a living room located on the ground floor of the existing building as had been the remedial action required by the proposed Order pursuant to the EP&A Act, s 121B).

10. However, notwithstanding this proper concession it remained the Council’s principal contention that the evidence permitted a finding that the subject premises were being used as a multi-unit housing (comprising two separate dwellings). In this respect it is clear that the competing categorisations are of mutually exclusive categories of residential development not because “shared residential accommodation” is a defined category of development (it is not) but because it is a type of residential use that may be carried out in a single dwelling-house and it is that latter quality that necessarily distinguishes it from the defined category of “multi-unit housing” which requires “two or more” dwellings.

11. The council’s concession means that it has effectively abandoned its alternative claims that the use of the subject premises is as (i) a boarding-house; (ii) a house let in lodgings, or (iii) otherwise than as a dwelling-house if the Court makes the ultimate finding that the use of the building is the use of a dwelling-house on a shared accommodation basis. Accordingly and reduced to the barest essentials, the question in dispute that emerges from the Council’s concession is whether the subject premises are being used as one dwelling or more than one dwelling. If the findings is for the former, it matters not, flowing from the Council’s concession, that the one dwelling is being used to provide shared residential accommodation for a number of unrelated persons.

12. Accordingly, the fundamental issue in dispute and now requiring adjudication has, in the course of the hearing, been considerably narrowed to the single question of fact, namely how, on the evidence, is the use of the subject premises to be categorised in terms of the only available choices presented by the parties namely (i) shared residential accommodation of a dwelling as contended by the Respondent or (ii) multi-unit housing (comprising two separate dwellings) as contended by the Council.

13. In view of (i) the Council’s concession in respect of the legitimacy of use of a dwelling-house providing shared residential accommodation; and (ii) the fact that the Council bears the onus of proving its case for declaratory and injunctive relief (Jones v Sutherland Shire Council (1979) 40 LGRA 323 at 327) the crucial question can be still further narrowed as follows:

Has the Council established that the use of the subject premises is properly categorised as multi-unit housing?

B. RELEVANT FACTS CONCERNING USE OF SUBJECT PREMISES

14. The subject premises comprise lot 5 Deposited Plan 31589 being a rectangular shaped lot having a frontage of 60 feet to Stanley Road and a depth of 125 feet. In common with other lands in its vicinity, the subject premises are included in the “Residential A (Low Density)” Zone in terms of the LEP. Within that Zone, cl 7(1) provides that development for the following relevant residential purposes may be carried out with development consent:

dwelling houses;

exhibition homes;

group homes;

housing for aged or differently aged persons;

multi-unit housing

15. Clause 23 of the LEP contains the “Dictionary” which includes definitions of the following types of residential development—

attached dwelling

bed and breakfast accommodation

boarding house

dwelling

dwelling-house

exhibition home

farmstay accommodation

group home

guest house accommodation

housing for aged or differently aaged persons

moveable dwelling

multi-unit housing

permanent group home

transitional group home

16. The significance of these definitions is that generally they demonstrate that the LEP caters for a very broad range of residential types of development and that particularly, a number of the defined categories are not permitted in the Residential A zone (eg a boarding house).

17. However, the following definitions are relevant to the issue in dispute in these proceedings—

attached dwelling means a dwelling attached to another dwelling by a common wall or ceiling or floor where the dwellings maintain the appearance of a single building and where not more than two dwellings are erected on the same allotment of land;

dwelling means a room or number of rooms occupied or used, or so constructed or adapted as to be capable of being occupied or used, as a separate domicile;

dwelling-house means a dwelling, other than a rural worker’s dwelling or an attached dwelling, that is the only dwelling on an allotment;

multi-unit housing means 2 or more dwellings, whether attached or not, but does not include a hotel or motel.

18. There is erected on the subject premises a residential building having the appearance of a conventional dwelling-house. The building comprises two floors and contains rooms and accommodation on each floor. Although there is not in evidence the approved plans of the original building, it is apparent that the dwelling-house that was originally built upon the subject premises was added to in 1974. The photographic evidence indicates that the original dwelling-house was probably built in the 1950’s at a time when development of the subject premises was governed by the County of Cumberland Planning Scheme which came into force in 1951 and that the development site was probably included in the Living Area Zone designated by that Scheme in which Zone development, for the purposes of a dwelling-house, was permitted without the need for development consent. Accordingly, use as a dwelling-house may be continued without the necessity for development consent: vide the EP&A Act s 109(1).

19. According to the documentary evidence, the Council granted development consent in 1974 for “additions to a brick veneer dwelling”. Those additions were located at the rear of the existing dwelling-house and involved both a ground floor and first floor addition. The additions at ground floor level involved a new living room (incorporating what was described in the approved plans as a “temporary kitchen”) a new bedroom and ensuite bathroom and a covered porch. An existing laundry and water closet room located in the garage of the existing dwelling-house adjacent to the approved addition, was modified to remove the laundry component and a set of internal stairs from the garage of the existing dwelling-house giving access to the first floor level of the dwelling was provided (it is possible that these stairs were already in existence giving access from the garage to the dwelling located upstairs) and a set of external stairs from the rear porch to the first floor level was also provided.

20. The additions at the first floor level included an elevated patio at which point the external stairs terminated, a new laundry and a new family room located directly above the ground level additions.

21. The development consent was granted by the Council on 11 July 1974 in Certificate of Consent No 112/74, pursuant to the County of Cumberland Planning Scheme Ordinance. In terms, it consented to “the erection of additions to the dwelling-house erected on the abovementioned property (being the subject premises) to accommodate an aged parent” subject to a number of conditions including the following:
3. The applicants entering into a $2,000.00 bond and legal agreement with a caveat on the title that should the parent cease to use the flat, the kitchen fittings be permanently removed and it be converted to form part of the dwelling house and not used for separate accommodation.

22. By Deed dated 1 October 1974 the then owners of the subject premises covenanted with the Council not to use any building “now or hereafter situated” on the subject premises otherwise than for a single dwelling house for occupation by one family. Notwithstanding that covenant, the Deed provided that the owners be permitted to allow part of the building to be used as a separate flat by the parents of the owners but when that use ceased, the owners covenanted to remove “the additional kitchen facilities” from the building.

23. The Deed provided for the owners to provide to the Council a bond of $2,000 to secure their compliance with the terms of the Deed and the Deed entitled the Council to lodge a caveat on the title to the land to protect the Council’s interest.

24. According to the documentary evidence annexed to the affidavit of Mr Peter Fryar (the Council’s Manager of Assessments Planning Division) sworn 2 August 2001, the flat was duly erected and occupied by the owners’ mother until 1975 when she died, whereupon the owners removed all kitchen facilities and the place was used thereafter as a “bar and rumpus room”. Upon advice from the owners in 1980 that they desired to sell the subject premises, the Council notified the owners’ solicitors that an inspection of the premises on 12 November 1980 had revealed that the kitchen facilities were removed in accordance with the Deed and that the Council would “lift the caveat” and “release the owners from the restrictions previously imposed”.

25. The Respondent acquired the subject premises in 1984 and initially occupied the dwelling-house with his family. Prior to purchasing the property, the Respondent had noted on his inspection that there existed in the corner of the living room on the ground floor the kitchen cupboards and a sink, but no stove or other cooking facilities existed in situ. (The Respondent had observed a discarded stove in the storage area adjacent to the garage.)

26. According to the Respondent’s evidence, which was not challenged or rebutted, and which I accept, during 1985 and 1986 he rented the flat located at the ground floor of the subject premises and during 1987 and 1988 he commenced to rent the subject premises on a share accommodation basis and that use had continued to the present time. At the present time, there are four persons occupying the house on a share accommodation basis, in addition to himself and his partner.

27. The principal evidence relied upon by the Council in support of its contention that the use of the subject premises is as “multi-unit housing” are the recorded observations of the building made by Mr Peter Fryar when he inspected the subject premises on 20 June 2001, together with Mr Fryar’s comments and opinions based upon those detailed observations which are recorded in his affidavit sworn 2 August 2001.

28. Having described in detail the layout of the two floors of the building and the manner in which the various rooms so described were furnished etc Mr Fryar annexes to his affidavit a floor plan of each of the two floors of the building. (A copy of each of these floor plans is annexed hereto and marked “A”.)

29. Mr Fryar’s relevant comments and opinions in respect of his observations on his inspection of the building are contained in the following passages from his affidavit sworn 2 August 2001:-
36. In my opinion, the minimum requirement for a dwelling or domicile is that it contain kitchen facilities, bathroom/toilet facilities, sleeping quarters and a living area. Clothes washing/facilities are not essential in my opinion as a Laundromat may be used to serve that purpose.
37. Based on my observations that the ground floor of the premises contained a combined kitchen/living room and a bedroom with an ensuite bathroom, that the ground floor dwelling had separate front and rear access; and that there was not internal access from the interior of the ground floor premises to the first floor premises, I am of the opinion that the ground floor premises are capable of being occupied or used as a self contained dwelling, or separate domicile.
38. Based on my observations that the first floor premises contain a kitchen, a combined lounge/dining room, 3 bedrooms, a sunroom (being used as a 4th bedroom), and a bathroom, I am of the opinion that the first floor premises are capable of being occupied or used as a self contained dwelling or separate domicile.

30. It is at once to be noted that Mr Fryar’s opinions are that each of the two floors of the existing building is “capable of being occupied or used as a self-contained dwelling or separate domicile”. In this respect it is to be noted that “capability’ of use or occupation as a self-contained dwelling, may or may not be, something that is different from actual “use or occupation as a self-contained dwelling”.

31. In the present case, the Respondent’s unchallenged evidence concerns the actual use and occupation of the building. That evidence is that the persons (including himself and his partner) living in the building in shared residential accommodation, have freedom of access between the two floors of the building. Thus he and his partner use the full kitchen facilities that are located on the first floor because there is not a full kitchen on the ground floor inasmuch as there is no stove or other cooking appliance (apart from a microwave oven). Similarly, they use the only laundry provided in the building which is located on the first floor. Similarly, they use the bathroom located on the first floor if they desire a bath because the ensuite and bathroom located on the ground floor do not contain a bath Similarly, they use the upstairs lounge room and dining room. They sleep in the bedroom located on the ground floor.

32. Conversely the persons occupying the four bedrooms located on the first floor, who share the living and kitchen, bathroom and laundry facilities located on that level, have free access to the lounge room located on the ground floor.

33. The foregoing evidence, given by the Respondent of actual use and occupation of the subject premises, which was not challenged, and which I accept, clearly establishes that the building is not actually used or occupied as two self-contained and separate dwellings. Rather, the whole of the building is indivisibly used and occupied on a shared residential accommodation basis.

34. Does this mean that there is a conflict arising from the totality of the evidence between (i) the capability of use and occupation of the building as two separate dwellings (Mr Fryar’s evidence); and (ii) the actual use and occupation of the building as a single dwelling (the Respondent’s evidence) and if so, what is the legal consequence of this conflict. In particular has the Council established its claim that the subject premises are being used as two separate dwellings (ie as “multi-unit housing”) by its evidence of the capability of the subject premises to be used or occupied as two separate buildings.

35. However, before those questions are encountered, I must first consider Mr Fryar’s opinions concerning the capability for use and occupation as a separate dwelling of each of the two floors of the building erected on the subject premises.

36. It is to be noted that the opinions are solely founded upon features concerning the physical layout and condition of the building, namely: (i) that each floor level has a separate front and rear access arrangement; (ii) that there is no internal access between the living accommodation provided on the two floors; and (ii) the ground floor living room includes in a corner, the kitchen facilities comprising some cupboards, a sink and a microwave oven.

37. These kitchen facilities are described by Mr Fryar in par 31 of his affidavit as follows:

I observed a combined living room/kitchen area. In this room I observed a fridge, a sink, a microwave oven, and various cooking utensils and cleaning products. I observed that a quantity of food was stored on top of the refrigerator and on top of the microwave.

38. I do not think that Mr Fryar’s evidence establishes that the ground floor contains a kitchen in the living room. In this respect, the absence of cooking facilities (ie a stove) is, I think, a crucial consideration, which is not countermanded by the presence of a microwave oven.

39. Similarly, I do not think the presence of the cupboards and sink constitute that area in the living room, as a kitchen. In respect of these cupboards and sink the evidence satisfies me, that as a matter of probability, the cupboards and the sink are the same as what was installed pursuant to the development consent granted by the Council in 1974 for the ground and first floor additions to the then existing dwelling-house.

40. The only evidence (all of it is documentary) that suggests that the kitchen facilities or fittings were removed includes the statement made in 1980 by the then owners of the subject premises that “since 1975 all kitchen facilities have been removed and the place has only been used as a bar and rumpus room”. This statement is entirely consistent with the removal of the stove, but the retention of the cupboards and sink so as to create “the bar and rumpus room”. Bar areas provided in dwellings commonly include the provision of a sink and cupboards. When such facilities are combined with a cooking appliance (eg a stove) the conclusion that the total facilities provide a kitchen or kitchenette would be both reasonable and unexceptional. However absent the stove, the same facilities would reasonably and unexceptionally be regarded as providing a bar area.

41. Corroboration of these findings (which I make by way of inference) is found in my acceptance of the Respondent’s unchallenged evidence that prior to purchasing the subject premises in 1984 he had observed on inspection the same kitchen cupboards in the location in the living room on the ground floor as they exist today and his observation did not lead him to conclude that the cupboards had been originally removed and later reinstated.

42. The totality of the evidence on this issue satisfies me that the cupboards and sink that currently exist originally formed part of the provision of a kitchen in the corner of the living room on the ground floor, being part of the 1974 approved additions to the existing dwelling-house for use by the parents of the then owners of the subject premises, but that following the death of the then owners’ parent(s) who had occupied the addition as a separate flat, the stove was removed from the kitchen area and the remaining facilities (cupboards and sink) were thereafter used as part of the bar area.

43. The current existence on the subject premises of those same cupboards and sink does not, either by itself (or taken in combination with the presence of a portable microwave oven) render those facilities or the space they occupy a kitchen within the ordinary understanding of what facilities are conventionally provided by a kitchen. Accordingly, their existence does not support Mr Fryar’s opinion that the ground floor is capable of being used and occupied as a separate dwelling.

44. The other two physical features of the building relied upon by Mr Fryar in support of his opinion that each of the two floors was capable of being occupied or used as a separate dwelling concern (i) the access arrangements to each floor and (ii) the access arrangements between the floors.

45. In my opinion, a crucial consideration that has been overlooked by Mr Fryar in his analysis of the consequences of these access arrangements, is the fact that they are the direct result of the 1974 approved additions to the existing dwelling house. Two allied facts are equally important, namely—(i) that the building as it currently exists has probably so continuously existed since the 1974 approved additions were carried out; and (ii) that the 1974 development consent in imposing the condition for the removal of the kitchen fittings after the owners’ parents ceased using the approved flat, expressly acknowledged that thereafter the flat would be “converted to form part of the dwelling house and not be used for separate accommodation”: vide Condition 3.

46. Taken in combination, these facts support a finding that I now make, that the current physical layout of the building was approved by the 1974 development consent for the ground and first floor additions, that such approved additions were duly carried out, and that following the death of the then owner’s mother in 1975, the flat was converted to form part of the existing dwelling house and that that conversion did not necessitate or result in any physical changes to the then approved building layout.

47. When consideration is given to these historical facts (none of which is mentioned in Mr Fryar’s analysis of the current layout of the building) there is no foundation for concluding that the current physical access arrangements since 1975 either existed, or were provided, for the purpose of enabling (in a “capability” sense) the two floor levels of the existing building to be used or occupied as separate dwellings. Rather, the appropriate finding, which I make, is that the current access arrangements have been in existence (without change) since 1974 when the approved flat was separately occupied by the then owner’s mother and thereafter since 1975 (when the parent died and the separate flat use ceased) those same access arrangements have been maintained in the conversion of the use of that flat to form part of the existing dwelling-house.

48. In so concluding, I have not found it necessary to distinguish between (i) access arrangements to each of the floors; and (ii) access arrangements between each of the floors.

49. However, concerning the latter, unlike Mr Fryer, I do not find any significance in the fact that the internal stairs between the floors run between the living area upstairs and the garage area (rather than the living area) downstairs. The garage floor is enclosed and the stairs are situate some 3 or 4 metres from the entry door to the downstairs living room which is accessible via the garage. I can see no significance whatsoever in this physical arrangement compared with the situation for example where the bottom of the stairs is located within the living area of the ground floor level. In any event, as I have demonstrated, the internal physical access was provided as part of the 1974 approved additions. At least that is how I have interpreted the approved plans annexed to Mr Taylor’s affidavit sworn 2 August 2001, although it is possible (as I have earlier mentioned) that those internal stairs pre-dated the 1974 approved additions thereby providing internal access between the ground level enclosed garage and the living quarters of the dwelling-house, that were originally wholly contained on the first floor.

50. For all the foregoing reasons, I do not accept Mr Fryar’s opinion that the ground floor of the existing building is capable of being occupied or used as a self-contained or separate dwelling.

51. In so concluding, I have applied the definition of “dwelling” contained in the LEP. That definition is almost identical to the well known and long established definition of “flat” contained in the Local Government Act 1919, s 304 which was referred to by the Court of Appeal in Slazengers (Aust) Pty Ltd v Emerson (1967) 69 SR (NSW) 144:…a case involving the expression “flat or home unit in a residential flat building or home unit building appearing in s 7(1)(g) of the Workers Compensation Act 1926 (NSW)

52. In that case, Sugerman JA (at 148) (with whom Jacobs and Holmes JJA agreed) stated his view of the ordinary and common understanding of a residential flat in these words:

It does not appear to me that in order to be a flat, premises must be self-contained in the sense that they must possess for their own exclusive use all the facilities which are commonly found in a complete single dwelling-house, such as a bathroom, a toilet and a laundry. It is common knowledge that many premises described in ordinary usage as flats do not possess all these facilities. The expression self-contained flat is itself in common usage by way of referring to a flat which has its own kitchen, bathroom and toilet and of distinguishing it from flats which are lacking in some of these facilities.

53. After referring to the fact that the statute referred to flat in a residential flat building his Honour continues (at 148-149):

The idea is well expressed in the definition of flat in s 304 of the Local Government Act 1919 as amended; and although it is recognised that that is a definition for the purposes only of that Act it may be quoted as expressive of what I have endeavoured to put in my own words. According to that definition the word means a room or suite or rooms occupied or used or so constructed, designed, or adapted as to be capable of being occupied or used as a separate domicile . It has been pointed out to us that the premises here in question do not comply with cl 56 of Ordinance 71 made under the Local Government Act which requires that within each flat there shall be, inter alia, a bathroom and a water closet. They are none the less a flat within the meaning of that Act and the ordinance (which only imposes its requirements if the premises are a flat) and, in my opinion, in the ordinary use of language and within the purview of the Workers’ Compensation Act .

54. Significantly, in its present context in the LEP, including its express incorporation into the related definitions of “dwelling-house’ and “multi-unit housing” the true meaning of the defined term “dwelling” must, in my opinion, be equivalent to what Sugerman JA described as a “self-contained” flat (rather than a flat lacking the facilities commonly found in a dwelling-house) which significantly is the term employed by Mr Fryar in proffering his relevant opinions in the present case.

55. Because I have now found that the ground floor of the building erected on the subject premises is not capable, as it currently exists (ie without a kitchen providing a stove) of being occupied or used as a separate dwelling, the problem that I have earlier adverted to concerning a possible conflict between (i) a capable occupation and use and (ii) an actual occupation and use, does not arise, in the result.

56. Since I have earlier found that the actual use of the building as shared residential accommodation, does not involve the separate use and occupation of each of the two floors of the building, and have now found that there is no capability of use or occupation, of each of the floors as a separate dwelling, it follows that the Council has not proved its allegation that the subject premises are “being used as multi-unit housing” in breach of the EP&A Act.

57. However, for completeness, I would add that if the facts of the present case had involved a finding that the actual use of the subject premises was as shared residential accommodation of a single dwelling, and a finding that that single dwelling was capable of being used or occupied as two separate dwellings (one on each of the two floors) those findings would not, in my judgment, have led to the ultimate conclusion that the Council had relevantly established that the subject premises “were being used as multi-unit housing”. This is because the essence of the Council’s claim is “use of the subject premises as multi-unit housing” and that use would not be established by concurrent findings that the premises were not being actually used as separate dwellings but that the premises were nonetheless capable of being so used. The matter can be tested in a simple and direct fashion, by contemplating the case of many modern day dwellings containing such a super-abundance of rooms and facilities as to be readily “capable of being used or occupied as separate dwellings”, yet nonetheless being actually used as a dwelling for one family. In such a case, it is inconceivable that it could seriously be suggested that the dwelling was being used as two or more dwellings, merely on account of its superabundant capacity.

58. For completeness, I should say that in concluding that the Council has not proved that the subject premises are being used for multi-unit housing, I have taken into consideration other evidence, that was not relied upon by Mr Fryar in forming his relevant opinions (which for the reasons given, I have rejected) but which was adduced in the Council’s case. This evidence involves the following matters—
(i.) the fact that the Respondent through a planning consultant made a development application to the Council in July 2000 to “change the use of the subject premises from a dwelling-house to multi-unit housing”; and
(ii.) the content of various conversations between the Respondent and Mr Taylor, the Council’s Compliance Officer as recorded in the latter’s affidavit sworn 2 August 2001.

59. There are a number of references contained in the documentation supporting the development application that the subject premises had been used for a long time as two separate dwellings—one comprising the living accommodation provided on the ground floor and the other comprising the upstairs accommodation.

60. These statements are not consistent with the Respondent’s unchallenged evidence (that I have accepted) concerning the precise pattern of use of the subject premises as shared residential accommodation. The contrary statements contained in the documentation comprising the development application were not put to the Respondent during his cross-examination, and as I have noted, they were not relied upon by Mr Fryar in the formation of his relevant opinions. Moreover, the statements in the documentation supporting the development application were made in the context of an application seeking approval to change the use of the premises from “a dwelling-house to a multi-unit housing development”, being an application which the Council had expressly invited the Respondent to make rather than having to remove the kitchen cupboards in accordance with the Council’s draft Order pursuant to s 121B of the EP&A Act.

61. In the circumstances, and accepting that there is inconsistency between the Respondent’s oral testimony and the statements contained in the documentation supporting the development application, which inconsistency was not addressed in the cross-examination of the Respondent or otherwise in the case, I have resolved the inconsistency in the evidence by accepting the unchallenged oral testimony of the Respondent.

62. The other evidence concerning conversations between the Respondent and Mr Taylor is to similar effect to the statements in the documentation supporting the development application.

63. For example, Mr Taylor’s affidavit records the following conversation with the Respondent when Mr Taylor went unannounced to the subject premises on 17 May 2000:

I said: Do you live in this flat?

He said: Yes

I said: Do you rent upstairs:

He said: Yes

I said: Do you have Council’s consent for this flat?

He said I bought the house with the flat

64. A few days later (on 22 May 2000) after the Respondent had received the Council’s proposed Order pursuant to the EP&A Act, s 121B, the Respondent attended the Council’s offices and had the following conversation with Mr Taylor:

He said: I’ve got this Order from Council. The order says I can make representations to Council. The flat was there when I bought the house.

I said: The ground floor flat does not have Council consent

I showed Mr Monk consent number 112/74 and the approved plans. Annexed and marked C is a copy of the consent. Annexed and marked D is a copy of the approved plans.

He said: Why can’t the consent continue?

I said: The consent was for occupation by the flat by an aged parent. Council was advised in 1980 that the aged parent had died and that the kitchen facilities had been removed. Council inspected the property in late 1980 and confirmed that the kitchen facilities had been removed and the use of the ground floor as separate accommodation had ceased.

I then showed Mr Monk copy of a letter from Whitehead Green and Cooper to Council dated 18 December 1980. Annexed and marked E is a copy of that letter.

He said: Is there anything I can do to resolve this?

I said: You either have to remove the kitchen or lodge a development application with Council.

He said: Can you recommend anyone to prepare a development application for me?

I said: Look in the town planning consultants in the Yellow pages.

65. Again, none of this evidence was put to the Respondent in cross-examination. In these circumstances, faced with the Respondent’s unchallenged oral testimony concerning the manner in which the subject premises are being used on a shared residential accommodation basis, I again resolve the inconsistency by accepting the unchallenged testimony of the Respondent.

66. Again, for completeness, I should say that the Council adduced no evidence seeking to establish any of its claims to alternative relief (ie that the subject premises were being used as a boarding house, or a house let in lodgings or otherwise than as a dwelling-house). To the extent (if at all) that any of these alternative claims survived the Council’s concession concerning the shared accommodation use of the subject premises, I find that the Council has not proved the claims or any of them.
C. CONCLUSIONS AND ORDERS

67. For all the foregoing reasons, the Council has not proved that the subject premises are being used as multi-unit housing and accordingly the Council’s class 4 application must be dismissed.

68. I make the following orders:
1. Amended class 4 application be dismissed.
1. Exhibits be returned.
2. Costs be reserved.

APPENDIX A