South Sydney v Sharpe

[1999] NSWLEC 15

Land and Environment Court

of New South Wales

CITATION:

South Sydney -V- Sharpe [1999] NSWLEC 15

This judgment revised on:

16/02/99

PARTIES

Applicant:
SOUTH SYDNEY C.C.

Respondent:
SHARPE, D.G.

NUMBER:

40192 of 1997

CORAM:

Bignold J

KEY ISSUES:

:- Contempt Motion:- alleged breach of Court Orders restraining use of premises as "backpacker's hostel"
Meaning in definition of "beds" and "rooms"

LEGISLATION CITED:

Contempt Motion:- alleged breach of Court Orders restraining use of premises as "backpacker's hostel"
Meaning in definition of "beds" and "rooms"

DATES OF HEARING:

02/02/1999

EX TEMPORE JUDGMENT DATE:

02/02/1999

LEGAL REPRESENTATIVES:

Applicant:
Ms C. Schofield, Solicitor

Solicitors:
Pike Pike and Fenwick

Respondent:
Mr S. Brockwell, Barrister

Solicitors:
Herd and Associates

JUDGMENT:

1. Before the Court is a Notice of Motion brought by the South Sydney City Council against the Respondent, Dominic Giles Sharpe seeking a declaration that the Respondent is in breach of an order made by the Court on 4 September 1997 and that he be adjudged to be in contempt of Court.

2. This is the second Contempt Motion brought by the Council against the Respondent, the first Contempt Motion being the subject of a reserved judgment of mine delivered on 20 April 1998 in which I found the contempt to have been established beyond reasonable doubt, when I reserved the question of penalty and costs. In a subsequent judgment delivered in the proceedings on 25 May 1998 I found the Respondent guilty of the contempt as charged, but for reasons given in that subsequent judgment, did not impose any fine or penalty other than an order that the Respondent pay the Council's costs.

3. Evidence has been filed in the current proceedings but has not been read at this stage because Ms Schofield for the Council and Mr Brockwell for the Respondent, have asked the Court to determine two preliminary questions upon which the parties are in dispute and which constitute the crux of the dispute between the parties, and most probably the answers will be determinative of the Motion.

4. Those questions are directed to (i) the number of bedrooms contained in the premises occupied by the Respondent as lessee and (ii) the number of beds contained in those rooms. Those questions reflect the definition of “backpacker’s hostel” as contained in Sydney Local Environment Plan 109 (LEP 109), which was the definition that I adopted in my original judgment, as providing the meaning and content to the Court's orders made against the Respondent in respect of the use of his premises as a backpacker’s hostel. That definition, relevantly defines “backpacker’s hostel” as a dwelling, residential flat building or hostel having an average of two beds or more per room and providing shared accommodation for persons who have their principal place of residence elsewhere.

5. In the course of my reasons for judgment, I held that it was essential if the Council were to sustain its contempt charge against the Respondent that it establish beyond reasonable doubt that the Respondent was relevantly using the subject premises as a “backpackers hostel” in the defined sense and at pp21 and 22 of the earlier judgment, I noted that this burden of proof involved establishing the following elements or characteristics of the subject premises:
(i.) they comprise a dwelling or hostel;
(ii.) they have an average of two or more beds per room.
(iii.) they provide shared accommodation; and
(iv.) that accommodation be for persons whose principal residence was elsewhere.

6. In the course of my reasons for judgment I held that the reference to “rooms” in the definition was to be taken as a reference to “bedrooms”. It is against that background, that the questions have been isolated by the legal representatives to the parties for preliminary determination on the current Motion.

7. The first question concerns, as I said, the number of bedrooms contained within the Respondent's premises. It is not in dispute that there are nine rooms, used at material times as bedrooms. However, the Council contends, for reasons presently to be mentioned, that some of those nine rooms should be excluded from the count of bedrooms. The question of the number of bedrooms involves the determination of three particular related questions, all of which are concerned with reasons or bases for excluding any number from the nine identified rooms used as bedrooms, namely
(i.) the use of the bedroom used by the Respondent as his bedroom;
(ii.) the two rooms formerly comprising the manager's flat or quarters, which since my judgment in the original proceedings have been converted to use as bedrooms, the Respondent having vacated his quarters and taken up in lieu thereof the use of one of the bedrooms in the premises; and
(iii.) whether, if the rooms formerly comprising the manager's flat are to be regarded as bedrooms, they should be regarded as only one and not two bedrooms, because access to one is dependent upon access through the other.

8. Competing arguments have been advanced and I have been assisted by them. It is the Council's contention that the bedroom occupied by Mr Sharpe, the Respondent, should be excluded from the relevant number of bedrooms contained within the premises and that the rooms formerly comprising the manager's quarters or residence ought likewise be excluded or alternatively if they are not to be excluded, then they should be regarded as only one bedroom because of the dependence for access through one room to gain access to the other.

9. The competing arguments contended for by the Respondent are that there is no reason in law or in fact to exclude from the count of nine bedrooms any of the bedrooms that have been identified in the three questions.

10. In contending for the exclusion of the bedroom occupied by the Respondent as his bedroom, the Council has fastened upon the fact that in my original judgment I do not appear to have included within the number of bedrooms contained within the premises the two rooms occupied and used by the Respondent at the time as manager’s quarters. It has been argued that the Court should resolve the present Motion by adopting a similar and consistent approach and that it would follow that although the Respondent now occupies one bedroom in the premises, instead of the former two rooms (comprising the manager's quarters or flat) the Court, for present purposes, should likewise exclude from the count of bedrooms the bedroom occupied by the Respondent. In putting that contention, the Council has indicated that that has been its understanding of the original judgment and that understanding has informed its present decision to bring the present Motion alleging further contempt by the Respondent.

11. It is undoubtedly true that in the original judgment I differentiated and did not include in the overall count of bedrooms, the two rooms comprising the manager's flat. Reference is made to such differentiation at pages 4, 22 and 23 of the earlier judgment.

12. However, in my judgment, no inconsistency is involved in an adjudication of the present question by holding that there is no reason in terms of legal policy to exclude the bedroom occupied by the Respondent from the count of relevant bedrooms for the purpose of the definition of “backpackers hostel”. It is not apparent to me from a re-reading of my original judgment that the exclusion of one of the rooms occupied as a bedroom by the Respondent, from the overall count of bedrooms, had any material legal bearing on the outcome of the earlier case and it may be that it was my rejection of the Respondent's then argument that the two rooms comprising the manager's flat should be included in the number of rooms relevant to the definition that focussed attention on the manager's flat as a single entity, even though it contained two rooms. Be that as it may, the present Motion calls from an adjudication of that particular question which, as I say, does not appear to have been material to the outcome of the first Motion and I am of the opinion that there is no reason to exclude the bedroom occupied and used by the Respondent as his bedroom from a proper assessment of the number of bedrooms contained within the premises for the purpose of applying the definition of “backpacker’s hostel” contained in LEP 109 which was adopted for the purposes of an understanding of the content of the Court's orders.

13. Accordingly, I would reject the Council's first contention and hold that the bedroom used and occupied by the Respondent is relevantly to be taken into account as a bedroom for the purpose of the definition.

14. That decision has bearing upon the second question because again, the Council's contention was founded upon the proposition that consistency with the approach taken in the first judgment should be sustained here and that since the manager's flat comprising the two rooms was not regarded as relevant to the application of the definition of backpacker’s hostel in the original Contempt Motion, so it should be regarded as not relevant here. As I have said, I find nothing inconsistent between my adjudication on the first question with what I decided in the original Contempt Motion but more importantly, it must be noted that there has been a material change of circumstance insofar as those two rooms are concerned. At the time of the original Contempt Motion, they were used as the manager's quarters, whereas at the time of the present Motion, that use no longer exists and has been replaced by use of the two rooms each as a bedroom. It is that material change of circumstance which requires the question to be answered on the basis of the current facts. In my view, the exclusion in my original judgment of the rooms formerly comprising the manager's quarters does not carry forward to the present enquiry, and the second question should also be answered against the Council's contention by holding that there is no reason in legal policy to exclude from the count of relevant bedrooms, the two bedrooms formerly comprising the manager's flat.

15. This brings me finally to the third question where the Council's contention is that if the manager's flat is not to be excluded then it ought to be regarded as one bedroom and not two on account of the fact (as I have earlier noted) that access to one room is dependent upon access through the other room. This fact does not, in my judgment, disqualify from the relevant count of bedrooms, each of the two rooms which is used as a bedroom. It is not uncommon in domestic arrangements for access to one room (even a bedroom) to be through another bedroom. It may not be the most congenial arrangement but it does not deny the characteristic of being a bedroom in its own right. Accordingly, each of the two rooms used for bedroom purposes, in my opinion, should not be regarded as but one bedroom as the Council has contended. Rather, I would answer that question by saying there is no reason in legal policy for excluding from the count of bedrooms each of the two rooms currently used as bedrooms but in former times comprising the manager's flat or quarters.

16. The second question that the parties have asked me to determine as a preliminary matter concerns the number of beds. In this respect it is agreed between the parties that the number is relevantly 17 or 18. It will be seventeen if it be held that the one double bed contained in one of the nine bedrooms is regarded as relevantly one bed for the purpose of the definition of “backpacker’s hostel” or eighteen if it be determined, as the Council has submitted, that that one double bed is in fact two beds. The former number will not attract the relevant definition whereas the latter number will.

17. The Council's contention that the one double bed contained within one of the bedrooms should be regarded as two beds, as I understood it, was founded on two propositions. One was the recital at page 4 of the original judgment of Mr El Masri's observation of the premises at the time of his inspection in 1997 when it is noted that he observed up to 21 beds in a total of seven bedrooms. It is said, in that respect, that the Court's notation of that piece of evidence from Mr El Masri's affidavit, involved an acceptance of his count of beds, which involved, so I am told, counting the double bed as two beds.

18. The second reason advanced by the Council in support of its contention that the Court should regard the double bed as relevantly two beds concerns the policy said to underlie the definition of “backpacker’s hostel” in LEP 109. The suggestion is that if the reference to “beds” in the phrase “having an average of two beds or more per room” in the definition of “backpacker’s hostel” were interpreted to include a double bed, then the number of occupants in such an establishment would be potentially double what it would otherwise be if the references were interpreted as applying to “single beds”.

19. I am not persuaded by either of these arguments advanced by the Council.

20. Mr El Masri's inspection, referred to on page 4 of the original judgment, of observing up to 21 beds does not in terms indicate that he regarded the double bed as comprising two beds in his count of 21 but I am prepared to accept Ms Schofield's submission that if his affidavit were to be revisited, it would be shown that that is how he counted the beds. Be that as it may, such a fact or its implications, does not elsewhere appear in my reasons for judgment and in my opinion, forms an insubstantial and inadequate basis for so determining the present question.

21. The second reason advanced concerning the policy underlying the definition of “backpacker’s hostel” also in my opinion has not been sustained. That definition could very easily have limited the number of persons residing in a “backpacker’s hostel” establishment by an absolute number or by reference to a number of residents per floor space or other standard that may have been adopted but it did not do so. As at present advised, I can see no reason in legal policy which would justify or even faintly support a reading of the definition and in particular, the phrase, “having an average of two beds or more per room” that limits the reference to “bed” to a single bed.

22. Accordingly, having rejected the Council's contention that the double bed should be regarded as two beds, it follows on the agreed facts, that I would find, both as a matter of fact and law, that the number of beds is relevantly 17.

23. Consequent upon my adjudication on the two questions of mixed fact and law said to be in dispute between the parties in a manner favourable to the Respondent, which adjudication it is conceded by the Council would justify dismissal of the charge, the Council has belatedly relied upon another point in its case, namely the observation by Mr Farrell, the Council’s Fire Safety Assessor, when inspecting the premises late last year, of (i) a number of mattresses (up to 20), being stored or placed one upon the other (virtually from the floor to the ceiling) in the Respondent's bedroom; and (ii) an additional mattress stored or placed against the wall of the hallway.

24. The Respondent, in his affidavit filed in the proceedings, deals with the question of those mattresses in the first three sentences of paragraph 5, where he says:

"I have retained mattresses and other items of equipment I had prior to May 1998. I was not able to sell these and I am not able to store them in the garage at the back of the premises as it is a dirt floor and is damp. I have stored these in the house."

25. Neither Mr Farrell nor Mr Sharpe was cross-examined on his affidavit. Ms Schofield, on behalf of the Council, properly concedes that she has not adduced any evidence that the stored or placed mattresses that I have referred to, have been relevantly used. However, she submits that they could be used to provide bedding and if they were so used, they relevantly would be beds and, if so used would involve the use of a number of beds far in excess of the “two or more per room average” referred to in the definition of “backpackers hostel” relevant for present purposes.

26. It is to be noted that the definition of “backpacker’s hostel” does not in terms define “bed” and does not in terms require the use of a bed as a bed. Rather, it defines as a “backpacker’s hostel” a dwelling or hostel having an average of two beds or more per room and providing shared accommodation of persons who have their principal place of residence therein. It is true that the participial phrase “providing shared accommodation for persons who have their principal place of residence elsewhere”, suggests a present use of the premises and perhaps, by implication, a present use of the beds referred to in the phrase “having an average of two beds or more per room”.

27. Be that as it may, the injunction in the present case enjoins the Respondent, his employees, invitees, agents, sublessees etc. from “using or permitting to be used the premises as a backpacker’s hostel”. In my judgment, the evidence in the case does not support a finding, beyond reasonable doubt (as is required to sustain a finding of contempt) that the Respondent is relevantly “using the premises as a backpacker’s hostel contrary to the Court's order”.

28. There is, as I have already noted, no evidence of use of the mattresses as beds and the Respondent in his affidavit has indicated that he has stored them in his bedroom and I am satisfied by that evidence and the photographic evidence of Mr Farrell that they are in truth stored in that room. So stored they do not, in my opinion, constitute beds, far less do they constitute the use of beds by the Respondent.

29. For all these reasons, the Council has not established beyond reasonable doubt any relevant breach of the Court's orders as it has alleged in its Contempt Motion and supporting statement of charge.

30. For all the foregoing reasons, I order that the Council’s Contempt Motion be dismissed. At the request of the parties, I reserve the question of costs.

--------------OoO--------------


I HEREBY CERTIFY THAT THIS AND THE PRECEDING 11 PAGES ARE A TRUE AND ACCURATE COPY OF THE REASONS FOR JUDGMENT HEREIN OF HIS HONOUR MR JUSTICE N R BIGNOLD.

Associate