Sun v Randwick City Council

Land and Environment Court

New South Wales

Case Name:	Sun v Randwick City Council
Medium Neutral Citation:	[2017] NSWLEC 188
Hearing Date(s):	6 December 2017
Date of Orders:	22 December 2017
Decision Date:	22 December 2017
Jurisdiction:	Class 6
Before:	Molesworth AJ
Decision:	See orders at [100].
Catchwords:	APPEAL – appeal against conviction of offence of carrying out development in contravention of section 76A(1)(a) of the Environmental Planning and Assessment Act 1979 – use of land for the purpose of boarding house permissible with consent only –whether land used for the purpose of boarding house without consent
Legislation Cited:	Boarding Houses Act 2012 Crimes (Appeal and Review) Act 2001, ss 31, 33, 34, 37, 39, 49, 62, 72 Environmental Planning and Assessment Act 1979, ss 76A, 125 Land and Environment Court Act 1979, ss 68, 77A Land and Environment Court Rules 2007, r 2.5 Randwick Local Environmental Plan 2012, cll 1.4, 2.1, 2.2, 2.3; Pts 1-3 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
Cases Cited:	Ashfield Municipal Council v Australian College of Physical Education Ltd (1992) 76 LGRA 151 Denning v Department of Environment and Conservation (2007) 153 LGERA 200; [2007] NSWLEC 258 Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242 Hussain v Liverpool City Council [2014] NSWLEC 45 Moseley v Queanbeyan-Palerang Regional Council (No 2) [2017] NSWLEC 52 Soukkar v Blacktown City Council [2017] NSWLEC 161
Category:	Principal judgment
Parties:	Mr Xiaohui Sun (Appellant) Randwick City Council (Respondent)
Representation:	Counsel: Self-represented (Appellant) Ms J Reid (Respondent)   Solicitors: Self-represented (Appellant) Eakin McCaffery Lawyers (Respondent)
File Number(s):	2017/00135662
Publication Restriction:	N/A

JUDGMENT

Mr Sun appeals against a conviction of carrying out development unlawfully

1. On 14 March 2016, Randwick City Council (‘the Respondent Council’) advised a constituent (presumably) that it had received his or her email of 10 March 2016 expressing concern that a building on land described as 26 Jellicoe Avenue was being used unlawfully as a boarding house (Exhibit 1, Statement of Anne Birkan, p 10 [38] and Tab 14).

2. Consequently, on 15 March 2016 at 10.00am, a health and building compliance officer of the Respondent Council, Ms Anne Birkan, attended land comprising Lot 19 in Deposited Plan 8098, known as 26 Jellicoe Avenue, Kingsford (‘the Land’) and carried out an inspection of the Land and the ostensibly residential building on the Land (Exhibit 1, Statement of Anne Birkan, pp 10-11 [39]-[43]).

3. On 18 March 2016, Ms Birkan issued Mr Xiaohui Sun (and two others) with a penalty infringement notice (‘PIN’) in the amount of $1,500 for the offence of – on 15 March 2016 at 10.00am – contravening s 76A(1)(a) of the Environmental Planning and Assessment Act 1979 (‘EPA Act’) by carrying out “[d]evelopment without development consent – class 1a or 10 building ­– individual” (Law Part Code 87019) on the Land (Exhibit 1: Tab 18).

4. Mr Xiaohui Sun is one of the registered proprietors of the Land (Exhibit 1, Statement of Anne Birkan, p 4 [18]…