The Hills Shire Council v Needham (No 2)

[2018] NSWLEC 98

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	The Hills Shire Council v Needham (No 2) [2018] NSWLEC 98
Decision date:	26 June 2018
Jurisdiction:	Class 4
Before:	Pain J
Decision:	See [182]
Catchwords:	ENVIRONMENT AND PLANNING – civil enforcement – prohibited activities – function centre in rural transition zone – commercial premises in rural transition zone – onus of proof on balance of probabilities that prohibited activities occurring in dwelling house satisfied by the council – no defence or evidence filed by respondent land owner – onus of proof that exempt development lies on respondent – onus not met – exercise of discretion to make a declaration and consequential orders restraining prohibited uses of land   COSTS – award of costs on indemnity basis warranted given unreasonable conduct of respondent in proceedings
Legislation Cited:	Civil Procedure Act 2005 s 98 Environmental Planning and Assessment Act ss 76B, 121H, 123, 124, Land Use Table, Evidence Act 1995 s 142 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 cll 1.15, 2.113, 2.114, 2.117, 2.118 The Hills Shire Council Local Environmental Plan 2012 cl 2.8, Land Use Table, Schedule 2, Dictionary Uniform Civil Procedure Rules 2005 r 42
Cases Cited:	Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Rosniak v Government Insurance Office (1997) 41 NSWLR 608 Styles v Wollondilly Shire Council (No 3) [2001] NSWLEC 133 The Hills Shire Council v Needham (No 1) [2018] NSWLEC 1 Westfield Management Ltd v Direct Factory Outlets Homebush Pty Ltd (No 4) [2005] NSWLEC 168
Texts Cited:	Macquarie Dictionary Online (2017)
Category:	Principal judgment
Parties:	The Hills Shire Council (Applicant) Norma Bianca Maree Needham (Respondent)
Representation:	COUNSEL: M Wright SC (Applicant) M Fozzard (Respondent)   SOLICITORS: Marsdens Law Group (Applicant) Bilias & Associates (Respondent)
File Number(s):	17/162057

Judgment

1. The Hills Shire Council (the Council) has commenced Class 4 civil enforcement proceedings seeking to restrain the use of Ms Needham’s property in Ascot Road Kenthurst (the Property) for prohibited activities in a rural transition zone.

Summons

2. The Council filed a Summons on 30 May 2017 seeking the following relief:

The Applicant seeks a declaration:

1. That the Respondent is unlawfully carrying out development contrary to the provisions of section 76B of the Environmental Planning and Assessment Act 1979 (“EPA Act”) on the land known as Lot 1 in Deposited Plan 31243 (11) Ascot Road, Kenthurst (“the Land”) in that the Respondent is using the Land for the prohibited purposes of a “function centre” and “commercial premises” as defined by The Hills Local Environmental Plan 2012 (“THLEP 2012”).

The Applicant seeks the following orders:

2.   An order restraining the Respondent by herself, her servants and agents from using, causing or permitting the Land to be used for the purposes of a “function centre” including the holding of events, functions, conferences, wedding receptions and the like.

3.   An order restraining the Respondent by herself, her servants and agents from using, causing or permitting the Land to be used as “commercial premises” including commercial photography and commercial videography .

4.   An order that the Respondent pay the Applicant's costs.

5.   Such further or other orders as the Court sees fit.

Points of Claim

3. The Council filed Points of Claim as follows:

1. The Applicant is the Council of the Local Government Area of The Hills Shire constituted under the Local Government Act 1993 (“the Council”).

2.   The Respondent is the owner of land known as Lot 1 in DP 31243 (11) Ascot Road, Kenthurst NSW 2156 (“the Land”).

3.   The Land is zoned RU6 Transition under The Hills Local Environmental Plan 2012 (“THLEP 2012”).

4.   The Applicant will rely upon THLEP 2012 at the hearing for its full terms and Effect.

5.   The use of the Land for the purpose of a “function centre” and “commercial premises” is development that is prohibited under the provisions of THLEP 2012.

Particulars

i.   The Land Use Table in Part 2 of THLEP 2012 identifies the objectives of the RU6 Transition zone and the uses that may be carried out without development consent, that are permitted with ·development consent and that are prohibited as follows:

...

ii.   The use of the Land for the purpose of a function centre or for commercial premises are not purposes listed in item 2 of the Land Use Table for the RU6 zone as permitted without development consent or in item 3 of the Land Use Table for the RU6 zone as permitted with development consent and are therefore prohibited under item 4 of the Land Use Table for the RU6 Zone. Use of the Land for either purpose is therefore unlawful.

iii.   The Dictionary to THLEP 2012 provides the following definition of function centre and commercial premises:

“function centre means a building or place used for the holding of events, functions, conferences and the like, and includes convention centres, exhibition centres and reception centres, but does not include an entertainment facility”.

“commercial premises means any of the following:

(a)   business premises,

(b)   office premises,

(c)   retail premises.”

6.   Since in or around March 2016 until the present time, and continuing, the Respondent has used the Land for the purpose of a function centre.

Particulars

The Applicant has received complaints and has gathered evidence to confirm that the Land has been used for the holding of events, functions, conferences and the like on the following dates:

a.   5 and 6 March 2016 – Mardi Gras function.

b.   26 and 27 March 2016 – Weekend bucks party.

c.   2 April 2016 – Wedding function.

d.   3 April 2016 – “Hot Kandi” End of Summer White Mansion Pool Party.

e.   30 April 2016 – Wedding function.

f.   19 June 2016 – Wedding function.

g.   27 August 2016 – Wedding function.

h.   28 January 2017 – Party.

i.   25 March 2017 – Wedding function.

j.   1 April 2017 – Birthday party.

7.   The Land has also been used for the purposes of commercial photography and videography including wedding photography and for filming as that term is defined in the Dictionary to THLEP 2012.

8.   There is no development consent or other approval issued by the Applicant authorising the use of the Land for the purpose of holding events, functions, conferences and the like or for use of the Land as commercial premises.

9.   Prior to the commencement of proceedings the Applicant requested the Respondent to cease using the Land for the purpose of holding events, functions, conferences and the like and has endeavoured to reach agreement with the Respondent in this regard.

Particulars

i.   On 20 December 2016 the Applicant's solicitors, Marsdens Law Group has sent a letter to the Respondent stating (inter alia):

“Accordingly Council requires from you your written undertaking confirming that you agree to immediately cease using the premises for the purpose of holding events, functions, conferences and the like being a use for the purpose of a function centre as defined by The Hills Local Environmental Plan 2012. Council requires your written undertaking in this regard within fourteen (14) days of the date of this letter.

In the event that you do you not provide the written undertaking as required or the premises are used for the purpose of a function centre, whether or not you have provided the written undertaking, Council will commence forthwith, and without further notice to you, proceedings in Class 4 of the Land and Environment Court seeking declarations and orders requiring that you cease the use of the premises for this purpose. In the event that Council is required to commence proceedings in Class 4 of the Land and Environment Court jurisdiction then we also put you on notice that Council will be seeking orders requiring you to pay its costs of those proceedings.”

ii.   On 31 January 2017 the Respondent has responded by providing to the Applicant's solicitors an undated letter stating (inter alia):

“I am most happy to comply with request of your request and provide an undertaking confirming that I agree to cease using the premises for the purpose of holding events, functions, conferences and the like being a use for the purpose of a function centre."

iv.   The Respondent has not complied with the request of the Applicant or the undertaking provided and has, after giving the undertaking, continued to use the Land for the purpose of the holding of events, functions, conferences and the like.

10. The use of the Land for the purpose of holding of events, functions, conferences and the like and for commercial premises including commercial photography and videography and filming, is prohibited by THLEP 2012 and therefore unlawful by virtue of the operation of section 76B of the Environmental Planning and Assessment Act 1979 (“EPA Act”).

11. The Court should, in the exercise of its discretion, make the orders as sought in the Summons because of the persistent and serious breach of section 76B of the EPA Act and the adverse impact on the amenity of the locality.

4. Ms Needham filed no defence or evidence.

Environmental Planning and Assessment Act 1979

5. The Environmental Planning and Assessment Act 1979 (EPA Act) has had its provisions rearranged and renumbered with these changes having been effective on and from 1 March 2018. It is appropriate to refer to the provisions requiring consideration in these proceedings by the numbering system which applied prior to the 1 March 2018 changes. Relevant sections of the EPA Act provide:

Part 4 Development Assessment

Division 1 Carrying out of development—the threefold classification

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76B Development that is prohibited

If an environmental planning instrument provides that:

(a)   specified development is prohibited on land to which the provision applies, or

(b)   development cannot be carried out on land with or without development consent,

a person must not carry out the development on the land.

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Part 6 Implementation and enforcement

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Division 3 Orders of the Court

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123 Restraint etc of breaches of this Act

(1)   Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach.

(2)   Proceedings under this section may be brought by a person on his or her own behalf or on behalf of himself or herself and on behalf of other persons (with their consent), or a body corporate or unincorporated (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings.

(3)   Any person on whose behalf proceedings are brought is entitled to contribute to or provide for the payment of the legal costs and expenses incurred by the person bringing the proceedings.

(4)   (Repealed)

124 Orders of the Court

(1)   Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.

(2)   Without limiting the powers of the Court under subsection (1), an order made under that subsection may:

(a)   where the breach of this Act comprises a use of any building, work or land—restrain that use,

...

(4)   The functions of the Court under this Division are in addition to and not in derogation from any other functions of the Court.

(5)   Nothing in this section affects the provisions of Division 3 of Part 3 of the Land and Environment Court Act 1979.

Local Environmental Plan

6. Relevant clauses of The Hills Local Environmental Plan 2012 (the LEP) provide:

Part 2 Permitted or prohibited development   

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2.8 Temporary use of land

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(1)   The objective of this clause is to provide for the temporary use of land if the use does not compromise future development of the land, or have detrimental economic, social, amenity or environmental effects on the land.

(2)   Despite any other provision of this Plan, development consent may be granted for development on land in any zone for a temporary use for a maximum period of 52 days (whether or not consecutive days) in any period of 12 months.

(3)   Development consent must not be granted unless the consent authority is satisfied that:

(a)   the temporary use will not prejudice the subsequent carrying out of development on the land in accordance with this Plan and any other applicable environmental planning instrument, and

(b)   the temporary use will not adversely impact on any adjoining land or the amenity of the neighbourhood, and

(c)   the temporary use and location of any structures related to the use will not adversely impact on environmental attributes or features of the land, or increase the risk of natural hazards that may affect the land, and

(d)   at the end of the temporary use period the land will, as far as is practicable, be restored to the condition in which it was before the commencement of the use.

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Land Use Table

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Zone RU6 Transition

1 Objectives of zone

•   To protect and maintain land that provides a transition between rural and other land uses of varying intensities or environmental sensitivities.

•   To minimise conflict between land uses within this zone and land uses within adjoining zones.

•   To encourage innovative and sustainable tourist development, sustainable agriculture and the provision of farm produce directly to the public.

2 Permitted without consent

Bed and breakfast accommodation; Extensive agriculture; Home occupations

3 Permitted with consent

Agricultural produce industries; Aquaculture; Building identification signs; Business identification signs; Cemeteries; Centre-based child care facilities; Community facilities; Dual occupancies (attached); Dwelling houses; Eco-tourist facilities; Environmental facilities; Environmental protection works; Farm buildings; Farm stay accommodation; Flood mitigation works; Garden centres; Home-based child care; Home businesses; Home industries; Information and education facilities; Intensive plant agriculture; Landscaping material supplies; Places of public worship; Plant nurseries; Public administration buildings; Recreation areas; Recreation facilities (indoor); Recreation facilities (outdoor); Respite day care centres; Restaurants or cafes; Roads; Roadside stalls; Secondary dwellings; Veterinary hospitals; Water supply systems

4 Prohibited

Any development not specified in item 2 or 3

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Schedule 2 Exempt development

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Temporary use of land

The temporary use of land for any of the following purposes for a maximum period of 14 days (whether or not consecutive days) in any period of 12 months:

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(d)   community event.

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Dictionary

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bed and breakfast accommodation means an existing dwelling in which temporary or short-term accommodation is provided on a commercial basis by the permanent residents of the dwelling and where:

(a)   meals are provided for guests only, and

(b)   cooking facilities for the preparation of meals are not provided within guests’ rooms, and

(c)   dormitory-style accommodation is not provided.

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business premises means a building or place at or on which:

(a)   an occupation, profession or trade (other than an industry) is carried on for the provision of services directly to members of the public on a regular basis, or

(b)   a service is provided directly to members of the public on a regular basis,

and includes a funeral home and, without limitation, premises such as banks, post offices, hairdressers, dry cleaners, travel agencies, internet access facilities, betting agencies and the like, but does not include an entertainment facility, home business, home occupation, home occupation (sex services), medical centre, restricted premises, sex services premises or veterinary hospital.

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commercial premises means any of the following:

(a)   business premises,

(b)   office premises,

(c)   retail premises.

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filming means recording images (whether on film or video tape or electronically or by other means) for exhibition or broadcast (such as by cinema, television or the internet or by other means), but does not include:

(a)   still photography, or

(b)   recording images of a wedding ceremony or other private celebration or event principally for the purpose of making a record for the participants in the ceremony, celebration or event, or

(c)   recording images as a visitor or tourist for non-commercial purposes, or

(d)   recording for the immediate purposes of a television program that provides information by way of current affairs or daily news.

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function centre means a building or place used for the holding of events, functions, conferences and the like, and includes convention centres, exhibition centres and reception centres, but does not include an entertainment facility.

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State Environmental Planning Policy (Exempt and Complying Development Codes) 2008

7. Relevant sections of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the SEPP) provide:

Part 1 General

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Division 2 – Exempt and complying development

1.15 What development is exempt development?

(1)    Development that is specified in an exempt development code that meets the standards specified for that development and that complies with the requirements of this Division for exempt development is exempt development for the purposes of this Policy.

(2)    For the purposes of subclause (1), development that is specified includes any specified limitations as to the land on which that development may be carried out

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Part 2 Exempt Development Codes

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Division 3 Temporary Uses and Structures Exempt Development Code

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Subdivision 4 Filming

2.113 Specified development

Filming is development specified for this code.

2.114 Development standards

The standards specified for that development are as follows:

(a)   the filming may only be carried out on land:

(i)   on which there is a heritage item, or

(ii)   within a heritage conservation area, or

(iii)   identified as an environmentally sensitive area,

if the filming does not involve or result in any of the following:

(iv)   any changes or additions that are not merely superficial and temporary to any part of a heritage item, a heritage conservation area or an environmentally sensitive area,

(v)   the mounting or fixing of any object or article on any part of such an item or area (including any building),

(vi)   the movement, parking or standing of any vehicle or equipment on or over any part of such an item or area that is not specifically designed for the movement, parking or standing of a vehicle or equipment on or over it,

(vii)   any changes to the vegetation on, or level of, such an item or area or any changes to any other natural or physical feature of the item or area,

(b)   the filming must not create significant interference with the neighbourhood,

(c)   if the filming is carried out on private land—the filming must not be carried out for more than 30 days within a 12-month period at the particular location,

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Subdivision 6 Tents or marquees used for filming purposes and private functions

2.117 Specified development

The construction or installation of a tent or marquee used for filming purposes or a wedding, private party or other private function is development specified for this code if it is carried out on any of the following land:

(a)   land within a rural, residential or environment protection zone and used for residential accommodation,

(b)   land in a zone other than a rural, residential or environment protection zone,

(c)   Crown land (within the meaning of the Crown Lands Act 1989),

(d)   land vested in or under the control and management of the council or other public authority of the area in which the development is carried out.

2.118 Development standards

The standards specified for that development are as follows:

(a)   for all tents or marquees being used at the same time—the development must not have a total floor area exceeding 200m2, if located in a residential zone, or 300m2, if located in any other zone,

(b)   if the development is carried out on land used for residential accommodation—each tent or marquee must be located:

(i)   at least 1m from any boundary of the land, and

(ii)   behind any building setback fixed by an environmental planning instrument or development control plan applying to the land,

(c)   if the development is carried out on land not used for residential accommodation—each tent or marquee must be located at least 3m from any boundary of the land,

(d)   each tent or marquee must be erected so as to provide an unobstructed pedestrian circulation area at least 1.5m wide around the perimeter of the tent or marquee, unless it is attached to or abuts a building with no separation,

(e)   each tent or marquee must be erected at ground level,

(f)   each tent or marquee must have the following number of exits arranged so as to afford a ready means of egress from all parts of the tent or marquee to open space or a road:

(i)   1 exit if the tent or marquee has a floor area of not more than 25m2,

(ii)   2 exits if the tent or marquee has a floor area of not more than 100m2,

(iii)   4 exits in any other case,

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Court orders of 8 February 2018

8. On 8 February 2018 the Court made orders as follows:

The Court makes the following orders, amending the orders made 7 February 2018:

(1)   Hearing dates are vacated.

(2)   Until further order, the Respondent by herself, her servants and agents be restrained from using, causing or permitting the land known as Lot 1 in Deposited Plan 31243 (11) Ascot Road, Kenthurst (the Land) to be used for the purposes of a “function centre” including the holding of events, functions, conferences, wedding receptions and the like.

(3)   Until further order, an order that the Respondent by herself, her servants and agents be restrained from using, causing or permitting the land to be used for the purposes of a “commercial premises” including commercial photography and commercial videography except for photography by Richard Arthur Photographer involving no more than four (4) persons including Mr Arthur as follows:

(a)   No more than once a week for one (1) day;

(b)   Only between the hours of 9am to 6pm;

(c)   All vehicles involved in the photography session are to be parked within the land;

(d)   The photography session is not to cause any offensive noise beyond the boundary of the land; and

(e)   The Applicant Council is to be notified 24 hours in advance of the photography session by telephone call or email to Craig Woods.

(4)   Until further order, the Respondent by herself, her servants and agents be restrained from advertising or promoting the Land by any means, including via websites and/or services such as “Airbnb” or “Stayz” for:

(a)   The purposes of a “function centre” including the holding of events, functions, conferences, wedding receptions and the like; or

(b)   The purposes of a “commercial premises” including commercial photography and commercial videography.

(5)   Respondent to pay the Applicant's costs thrown away in the sum of $11,660.00 within 42 days.

(6) Pursuant to Part 40.7(5) of the Uniform Civil Procedure Rules 2005 (NSW) the requirement for service of these orders is dispensed with.

Evidence

9. The Council read the following affidavits. Ms Needham’s counsel objected to a large number of paragraphs in two of Mr Woods’ affidavits sworn 26 May 2017 and 7 December 2017. Ms Needham’s counsel also objected to paragraphs in Mr Cabusas’ affidavit sworn 7 December 2017 and Mr Naidu’s affidavit sworn 7 December 2017. The rest of the Council’s affidavits were read without objection.

Affidavits of Mr Woods

10. Mr Woods manager of regulatory services with the Council swore an affidavit on 26 May 2017. An extensive number of documents were exhibited to Mr Woods’ affidavit (Exhibit A). I have only referred to those documents discussed at the hearing.

11. The Property is zoned RU6 rural transition under the LEP. Mr Woods searched the Council’s register of development consents in relation to the Property. He exhibited a list of development consents relating to the Property which showed that there were consents for a garage, a Colorbond fence, a three-car garage, a two-storey dwelling, a tennis court, an in-ground swimming pool, water storage, a residential driveway, a storage structure, a pool cabana, a tennis cabana and for the use of a former dwelling as a secondary dwelling.

12. On 5 February 2016 Ms Needham met with council officers to discuss a potential planning proposal for the Property for use as a function centre. She was accompanied by a planning consultant, Mr Montgomery of Montgomery Planning Solutions. A file note made by the Council’s town planner Ms Iori about the meeting was in Exhibit A. It recorded that Ms Needham wished to use the Property for commercial purposes and to hold weddings. The Council advised Ms Needham that there were concerns about the use of the Property as a function centre because of the potential impact on the amenity of the local area and parking availability. Options for Ms Needham’s use of the Property were discussed at the meeting including making an application for temporary use pursuant to cl 2.8 of the LEP or lodging a planning proposal to amend the LEP.

13. On 22 February 2016 a telephone complaint was received by the Council concerning the use of the Property for weddings of up to 200 people and weekend rentals which caused noise and traffic in the local area. The complaint stated that the Property was being advertised on “Stayz”. A copy of the Customer Service Request lodged for the complaint was in Exhibit A. After receiving the complaint the Council sent a letter dated 26 February 2016 to Ms Needham. The letter detailed the complaint made and stated that an internet search of the website Stayz.com showed the Property was being advertised for hire for special events, functions and as a holiday retreat. The letter set out the definition of a “function centre” in the LEP and stated that use of the Property for the purpose of a function centre was prohibited. A copy of the letter was in Exhibit A.

14. On 5 March 2016 the Council received by email a complaint about the use of the Property for a Mardi Gras party. The complaint specified that significant noise was emanating from the Property and that there were “hundreds” of persons in attendance. Owing to the receipt of the complaint Mr Woods had a telephone conversation with Ms Needham on 7 March 2016. Mr Woods sent an email to Ms Needham on the same day confirming the conversation, the email being in Exhibit A. The email advised Ms Needham of the complaints made about a Mardi Gras party held on 5 March 2016 and stated that the Property could not be used as a function centre. It noted that Ms Needham had told the Council that the Property had been used on that occasion for a party for one of her children. Ms Needham was advised to cease using the Property for the purpose of a function centre. The email also set out the definition of “bed and breakfast accommodation” in the LEP and advised that any use of the Property as a bed and breakfast had to comply with the definition in the LEP.

15. On 16 March 2016 the Council received a letter from Montgomery Planning Solutions a copy of which was in Exhibit A. The letter referred to the meeting between Ms Needham, Mr Montgomery and council officers on 5 February 2016. At the meeting Ms Iori undertook to discuss the use of the Property with Council and to provide a written response to Ms Needham. The letter stated that no response had been received. A response was urgently requested owing to a charity event occurring at the Property on 24 September 2016. If one of the options discussed at the meeting was to be pursued Ms Needham would require sufficient time to make the relevant application. Mr Woods sent an email to Mr Montgomery on 31 March 2016 which was also in Exhibit A. The email stated that further complaints had been made about the use of the Property from 25 March 2016 to 28 March 2016 and that the Council would be issuing a notice of intention to cease using the Property as a function centre to Ms Needham. The email also stated that breaches of the notice of intention may result in legal action. Mr Woods also sent an email to Ms Needham on 1 April 2016 a copy of which was in Exhibit A. The email outlined that the Council had received further complaints about use of the Property over the Easter long weekend. Mr Woods stated that he had received information from the tenants to the effect that they had rented the Property for the long weekend for $12,000. The email detailed that the Council was going to issue a notice of intention to cease using the Property as a function centre.

16. On 2 April 2016 the Council received by email a complaint about the use of the Property for a large party on that day. The complaint stated that the party had security guards, portable toilets, food vans and tarpaulins. It noted that loud music frequently emanated from the Property on weekends. A further email complaint was received over the course of 2 and 3 April 2016, a copy of which was in Exhibit A. The further complaint stated that five buses, a stretch limousine and approximately 30 cars entered the Property on 2 April 2016. There were approximately 300 guests in attendance at the party. Music emanating from the Property became particularly loud after 6.00pm. The person making the complaint had heard an announcement made over loudspeakers at the Property to the effect of “Welcome to Hot Kandi pool party”. The complaint attached photographs of the event taking place on the Property and an advertisement for an event called the “Hot Kandi end of summer all white mansion pool party”.

17. A letter dated 5 April 2016 also concerning the use of the Property on 2 April 2016 was received by the Council and was in Exhibit A. The letter stated that on 1 April 2016 there were multiple cars at the Property and excessive noise emanating from the Property. On 2 April 2016 the noise, including people speaking over a microphone, resumed at 9.45am and continued well into the night. The person making the complaint was unable to have visitors at their house and had to shut all doors and windows.

18. Mr Woods conducted an internet search by inserting the street address of the Property into the Google search engine. He was directed to the website and a Facebook page which outlined details of the use of the Property on 2 April 2016. As a result of these searches Mr Woods sent an email to Ms Needham on 5 April 2016 stating that complaints had been made to the Council about a party held on 2 April 2016. He advised that this and the previous functions held at the Property were not permitted and had significant impacts on neighbouring property owners due to noise and traffic. Ms Needham replied to the email on 6 April 2016 stating that she wanted to meet with Mr Woods and Mr Montgomery. Mr Woods sent a further email to Ms Needham on 6 April 2016 in which he said he would be happy to meet with her and Mr Montgomery. He asked Ms Needham to confirm that no further functions would take place at the Property as the use of the Property for events such as the party on 2 April 2016 were prohibited. On 6 April 2016 the Council issued a notice entitled “Notice of Intention to Give an Order – Order No. 1” under s 121H of the EPA Act (the Notice) a copy of which was in Exhibit A.

19. On 13 April 2016 Mr Woods, Mr Singh land use coordinator with the Council, Ms Needham and a man named Mr Chidiac had a meeting. At the meeting Mr Woods informed Ms Needham that the Council had continued to receive complaints about functions held at the Property and that these functions were impacting the surrounding neighbours. Mr Singh made a file note dated 15 April 2016 of the meeting which was in Exhibit A. The file note outlined that Ms Needham told the Council that people who had booked the Property through Stayz.com had cheated her by using the Property for functions instead of holiday stays while she was overseas. She had not received any money from the people who had used the Property while she was overseas and was considering legal action. Mr Singh advised Ms Needham of the issuing of the Notice. He had asked Ms Needham to provide an undertaking not to use the Property as a function centre to the Council’s solicitors. Ms Needham stated that there were functions planned for June and September of 2016 at the Property which were not commercial functions. Ms Needham was advised to discuss these events with the Council’s planners and if deemed suitable, she should also inform her neighbours to avoid complaints during those events. Ms Needham gave an assurance that no further functions would occur at the Property and that listings of the Property on websites advertising for functions and events would be removed. Ms Needham was permitted to use the Property as a bed and breakfast so long as it complied with the requirements in the LEP.

20. On 21 April 2016 the Council sent a letter to Mr Montgomery a copy of which was in Exhibit A. The letter outlined the objectives of the RU6 transition zone and the definition of a “function centre” in the LEP. The letter advised that although an application could be made to the Council to use the Property as a function centre, it was unlikely such an application would be approved. This was due to the amenity, disturbance and lifestyle impacts on surrounding residents. Further if an application for temporary use was made the Council would need to be satisfied that such a use would not adversely impact any adjoining land.

21. Mr Woods exhibited three photographs taken by a council officer of the Property on 30 April 2016. The officer had emailed Mr Singh about a conversation he had with a person named Garry who had been attending a function at the Property on 30 April 2016, a copy of the email being exhibited to Mr Woods’ affidavit. Garry informed the officer that the Property was being used for a wedding function hosting 50-60 people. Garry stated he had booked the venue through Airbnb.

22. On 20 May 2016 the Council issued an Order under s 121B of the EPA Act (the Order) to Ms Needham. On 23 May 2016 Mr Woods emailed Ms Needham reminding her of the Order and stating that further complaints had been received by the Council about a wedding function held at the Property on 30 April 2016. He advised that wedding functions were not permitted. He further advised that Stayz.com and Airbnb would be contacted and informed that the use of the Property as a function centre was prohibited and that they may be liable for aiding, abetting, counselling or procuring a breach of the EPA Act. Ms Needham replied by email the same day informing the Council of legal advice she had received in relation to Mr Woods’ email. She advised that in the event her use of the Property was not prohibited and the Council did contact Stayz.com and Airbnb the Council could be liable for any financial loss incurred. A further email was sent from Mr Woods to Ms Needham stating that the use of the Property on 30 April 2016 was not for the purpose of a bed and breakfast and was therefore prohibited. Copies of all emails from this day were in Exhibit A.

23. On 19 June 2016 the Council received by email a complaint about the use of the Property for a party. The complaint stated that numerous vehicles were parked outside the Property. Mr Woods conducted an internet search using the Google search engine. He viewed the Facebook page relating to the Property and observed a number of photographs uploaded on 20 June 2016 of the Property being used for a wedding. Copies of five of the photographs viewed by Mr Woods were in Exhibit A.

24. On 27 August 2016 the Council received by email a complaint about the use of the Property for a wedding. The complaint stated that there were numerous people at the Property, that the sound of drums was coming from the Property and that multiple vehicles were parked in the vicinity. Mr Woods conducted an internet search by viewing the websites and where he observed photographs of a wedding function which took place on that day. Mr Woods read an article on about the use of the Property for a wedding on that day. The webpage contained footage of Ms Needham being interviewed. During the interview Ms Needham was asked whether she had previously held weddings at the Property. Ms Needham replied that she had hosted her daughter’s wedding. As a result of the wedding on 27 August 2016 Mr Woods sent a letter to Ms Needham on 31 August 2016 a copy of which was in Exhibit A. The letter referred to the Order and stated that the Council had received further complaints about use of the Property for a wedding on 27 August 2016. Mr Woods stated in the letter that he had instructed the Council’s lawyers to commence proceedings against Ms Needham.

25. On 6 December 2016 a notice to provide information was sent to Ms Needham a copy of which was in Exhibits A and D. A response to the notice to provide information dated 27 January 2017 was received by the Council and was also in Exhibits A and D. In her response Ms Needham provided amongst other things the details of the event which took place on 13 December 2016 including a receipt for $6,000 for a “Christmas party” and a copy of the “Property Rules”.

26. On 13 December 2016 Mr Woods received a telephone call from Chief Inspector Szabo from The Hills Local Area Command. Inspector Szabo advised Mr Woods that the Castle Hill police station had received a noise complaint about the Property. Later that evening the Council’s senior health and building surveyor Mr McFarlane, Mr Woods and Inspector Szabo met at the corner of Ascot Road and Porters Road, approximately 750 metres from the Property. Mr Woods could hear loud music which seemed to be coming from the Property.

27. Mr Woods then drove from this location to outside the front boundary of the Property. He could hear loud music emanating from the rear of the Property. There were a number of people in the pool area on the grounds of the Property. Mr Woods walked onto the grounds of the Property and was approached by a person named Chris. Mr Woods asked Chris what was occurring at the Property and how many people were present. Chris stated he was having a Christmas party for his work and that there were about 40 people in attendance. Chris said he would contact the owner of the Property. Chris dialled a number into his phone which he then gave to Mr Woods. Mr Woods then spoke with Ms Needham on the telephone. Ms Needham stated the party was for her friends and that she had told them not to play loud music. Mr Woods said that Chris had informed him he had hired the Property and was not a friend of Ms Needham’s. He told Ms Needham that she had been informed by the Council not to use the Property for these types of functions. Ms Needham then asked to speak with Chris. Mr Woods created a file note of the event which was in Exhibit A.

28. On 19 December 2016 the Council received by email a complaint about the use of the Property for a party on 16 December 2016. The complaint stated that there had been a function at the Property on 16 December 2016 with many cars and loud music. The Property had also been rented out for the weekend of 17 and 18 December 2016, during which time music and noise from cars could be heard inside the house of the person making the complaint. Following this complaint the Council instructed its solicitors to write to Ms Needham. The letter from the Council’s solicitors dated 20 December 2016 (Exhibit B) requested that Ms Needham provide an undertaking to the Council that she would cease using the Property for events, functions, conferences and the like.

29. On 19 January 2017 Mr Woods met with Ms Needham and another person to discuss the use of the Property. Mr Woods confirmed what was discussed at the meeting in an email to Ms Needham on 25 January 2017. In the email Mr Woods confirmed that Ms Needham was required to provide an undertaking to the Council’s solicitors that no further functions or events would take place. Ms Needham had advised the Council of two weddings to take place in February and March 2017. The email stated that use of the Property for the two weddings was not authorised and would be a breach of the Order to cease using the Property as a function centre. Mr Woods was aware that on 31 January 2017 the Council’s solicitor received a letter from Ms Needham (in Exhibits A and C). In the letter Ms Needham stated “I am most happy to comply with your request and provide an undertaking confirming that I agree to cease using the premises for the purpose of holding events, functions, conferences and the like being a use for the purpose of a function centre.”

10. On 29 January 2017 the Council received by email a complaint regarding the use of the Property for parties between 27 January 2017 and 29 January 2017. The person making the complaint recalled approximately 10 vehicles entering the Property with 20-30 people present at the Property. The person had called the police regarding noise emanating from the Property on two of the nights the subject of the complaint. On 31 January 2017 Mr Woods sent an email to Ms Needham regarding the complaint made on 29 January 2017. In the email he advised Ms Needham that her use of the Property as a function centre was prohibited, was a breach of the Order and was contrary to the undertaking she had given to the Council’s solicitors.

11. On the same day Mr Woods received two emails from a Mr Dimbrowsky who was assisting Ms Needham in her responses to the Council. The email stated that Ms Needham would provide further details to the Council regarding a wedding in February in due course. In the meantime Ms Needham had implemented new terms and conditions for the use of the Property and had an on-site manager for the event on 27-29 January 2017. On 2 February 2017 Mr Woods sent an email to Mr Dimbrowsky stating that the Council did not approve the wedding which was to take place from 3-5 February 2017. The letter set out the definition of a “function centre” in the LEP and advised that such a use of the Property was prohibited. Mr Woods advised that the proposed use of the Property would result in a change in building classification under the Building Code of Australia (BCA) which meant that measures would need to be taken to ensure fire and safety standards were met. On 3 February 2017 Mr Woods received an email from Mr Dimbrowsky stating that he no longer represented Ms Needham. Mr Dimbrowsky provided a “run-sheet” of the wedding to take place from 3-5 February 2017.

12. On 3 February 2017 officers of the Council Mr Singh and Mr Hunt inspected the Property. On 4 and 5 February 2017 various officers of the Council conducted inspections at the Property. Mr Singh created a file note about his observations dated 6 February 2017. The file note stated that on 4 February 2017 Mr Singh observed approximately 30 vehicles parked on Ascot Road and approximately a further 20 vehicles parked inside the grounds of the Property. On 5 and 6 February complaints were received by the Council concerning the use of the Property for a wedding on 4 February 2017. Following these complaints Mr Woods sent a notice to provide information to Ms Needham on 7 February 2017. A response to the notice to provide information dated 26 February 2017 was received by the Council.

13. On 22 February 2017 Mr Woods met with Ms Needham, her solicitor Mr Singh and a Mr Vernon. Also present were Mr McKenzie the Council’s group manager of environment and planning and Mr Winn the Council’s corporate lawyer. At the meeting Ms Needham was advised that the Council had continued to receive complaints about use of the Property as a function centre. Ms Needham stated that a wedding had been booked for 25 March 2017 and she was not prepared to cancel it. She advised that no further functions would take place after the wedding.

14. On 27 February 2017 Mr Woods sent an email about the meeting on 22 February 2017 to Ms Needham’s then solicitor Mr Singh a copy of which was in Exhibit A. The email set out the definitions of “bed and breakfast accommodation” and “function centre” as defined in the LEP. It stated that the Property could be used as bed and breakfast accommodation provided it met certain criteria but that use as a function centre was not permitted. On 22 March 2017 Mr Woods sent an email to Ms Needham and her solicitor Mr Singh about a wedding to take place on 25 March 2017 which confirmed the Council’s advice that a wedding would be contrary to the undertaking given by Ms Needham. On 25 March 2017 officers of the Council conducted a series of inspections at the Property which confirmed that a wedding was taking place.

15. On 1 April 2017 complaints were received by the Council concerning a party being conducted at the Property on that day. A file note prepared by a council officer with four complaints made on that day was in Exhibit A. The complaints noted some 25 vehicles and three buses on the grounds of the Property, the presence of portable toilets and loud music emanating from the Property. Mr Woods then conducted an internet search viewing the Facebook Page of a “Trishy Dishy Karr” and the website for “Trishy Dishy Hot Kandi” and “Bar and Grill on Burke”. He also viewed the Instagram account of a “Mr Anthony” and the website of TryBooking. He observed a number of photographs on these pages. Mr Woods also viewed the website Mr Woods received an email from Chief Inspector Szabo on 6 April 2017 stating that the police had received numerous complaints about the events on 1 April 2017.

16. Owing to the history of the matter Mr Woods was concerned that Ms Needham would continue to use the Property for the purpose of holding events, function, conferences and the like.

17. Mr Woods swore a further affidavit on 7 December 2017. On Friday 24 November 2017 Mr Woods received a telephone call from a person named Mr Levison who resided in Ascot Road Kenthurst directly opposite the Property. He had a conversation to the effect that a number of portable toilets had been delivered to the Property and that there was going to be a party. Mr Levison said that black mesh-like material was covering the fence of the Property to stop people looking in. He believed that a party would take place the following day or over the weekend. Mr Woods asked Mr Levison if he had seen Ms Needham recently as her solicitors had not been able to contact her. Mr Levison said that he had seen Ms Needham recently. Mr Levison was concerned that the parties would increase in frequency during summer. Mr Woods said he would have a council officer inspect the Property the following day.

18. On Saturday 25 November 2017 Mr Levison telephoned Mr Woods, leaving a message to the effect that there was a party occurring at the Property and that he had called the police. That afternoon Mr Woods and Mr Levison exchanged a number of text messages. Mr Woods said that the party was allegedly a family pool party which was supposed to finish at 9pm. Mr Levison said that a caterer’s truck had arrived and it was “pretty noisy”. Mr Levison had called the police and asked for an urgent noise abatement order.

19. Later that afternoon Mr Woods had a telephone conversation with Sergeant Braydon from The Hills Local Area Command. He informed Sergeant Braydon that a complaint had been made about activities at the Property and requested that he attend.

20. On Sunday 26 November 2017 Mr Woods received an email from Inspector Harris from The Hills Local Area Command. The email was annexed to Mr Woods’ affidavit. Later that day Mr Woods received an email from Sergeant Haydon from The Hills Local Area Command advising that he had attended the Property on 25 November 2017. When Sergeant Haydon attended the Property he spoke with a man named Mr Harrison who identified himself as an event planner who provided his phone number.

21. On Monday 27 November 2017 Mr Woods called Mr Harrison. Mr Woods asked about the event on 25 November 2017. Mr Harrison said that the event was a birthday party. He was unsure who the party was for as he was only responsible for organising buses from the Sydney central business district to the Property. Mr Harrison could not recall how he knew to hire the Property. He thought he had seen it on Airbnb. He did not know the owner personally. Mr Harrison had booked the Property through a person named George who he believed dealt directly with the owner. Mr Harrison said he would call George and ask him to speak with Mr Woods.

22. Later that day Mr Harrison called Mr Woods. He said he had spoken with George. George had said he did not wish to speak to the Council and that the matter should be taken up with the owner.

23. Later that day Mr Woods called North Sydney Bus Charters and had a conversation with a person named Lawrence. Mr Woods asked about the hiring of a bus with registration number “TV9171” on 25 November 2017. Lawrence stated that the bus and four other buses had been hired by a person named Mr Harrison. The hire cost was $4,500. Lawrence stated that the arrangement with Mr Harrison had been to collect passengers from Wynyard Park at 10.00am and take them to the Property. The passengers were to be collected from the Property at 9.00pm and taken to Oxford Street. Lawrence stated that Mr Harrison had previously hired buses for drop-off and pick-up at party events in the northwest of Sydney.

24. Mr Woods swore a further affidavit on 13 December 2017. On Friday 8 December 2017 Mr Woods received a text message from Mr Levison. The message stated that Ms Needham was having a party. A utility vehicle had driven onto the Property carrying at least 100 chairs. The driver of the vehicle had approached Mr Levison’s daughter. Mr Levison stated that he was overseas and asked Mr Woods to follow up with Ms Needham.

25. Mr Woods then received an email from Mr Levison which attached two photographs and a log of vehicles entering and leaving the property and instances of noise emanating from the Property. The email and attachments were annexed to Mr Wood’s affidavit. Mr Woods then received a further text message from Mr Levison which stated that a wedding was occurring at the Property. Vehicles, including a wedding car, had arrived at the Property.

26. On Saturday 9 December 2017 Mr Woods received a further text message from Mr Levison which stated that a horse, vehicle and loud orchestra were in the vicinity of the Property. Mr Woods replied via text message that council officers had inspected the Property that day and asked Mr Levison to send photographs and descriptions of what was occurring.

27. Mr Levison replied via text message that his wife would be leaving their property that night but would ask her to take photographs and make a log of what was occurring at that time. He stated that there would be an arrival at 6.00pm as announced over the loud speaker at the Property.

28. Mr Woods replied that the Council would attend the Property that night. On Monday 11 December 2017 Mr Woods received an email from Mr Levison attaching five photographs and a log of vehicle movements and noise. The email and attachments were annexed to Mr Woods’ affidavit.

29. Mr Woods gave further evidence in chief that photographs copied from the Facebook page for the Property on 19 June 2016 exhibited to his affidavit sworn 26 May 2017 showed a woman in what appeared to be a wedding dress and a man in a suit standing on an internal grand staircase from the front door of Ms Needham’s home which premises he was familiar with. There was also a photograph showing a marquee set up with tables, chairs and lighting. The Facebook page for the Property showed that there was an upcoming charity event to be held at the Property on 24 September 2016. Mr Woods also downloaded images of the Property which had words superimposed on them which stated “Book your next event today” and “…this beautiful home is the ideal escape for a luxurious holiday or that 6 star special event or function.”

30. He was cross-examined about the charity event on 24 September 2016 and agreed he did not limit the number of people or cars which could attend. He did not give approval for the event as he formed the view the event did not require approval as a charity event. He agreed he made an election in that regard.

Affidavit of Mr Curran

51. Mr Curran fire safety officer with the Council swore an affidavit on 26 May 2017. Mr Curran has been employed by the Council since 1995. He is an A1 Accredited Certifier under the Building Professional Board Accreditation Scheme, has an Associate Diploma in Applied Science (Health and Building Surveying) and a Masters in Fire Safety Engineering.

52. Mr Curran undertook a fire safety review of the Property. He conducted a search of the Council’s register of development consents and confirmed that the Property was approved as a Class 1 residential dwelling under the BCA. Mr Curran annexed to his affidavit a list of development consents issued by the Council in relation to the Property which showed the same consents as those identified by Mr Woods at [11] above. There was no development consent authorising use of the Property as a function centre.

53. Mr Curran based his fire safety review on and annexed to his affidavit copies of the floor plans approved under development consent 992/2003/LD for the construction of a two storey dwelling issued on 10 December 2002 for the Property. The Property has a total floor area of 1,657m2, consisting of a ground floor area of 1,244m2 and a first floor area of 413m2.

54. If the Property were to be used as a function centre the building classification would change from Class 1 residential dwelling to Class 9b function centre, Class 7a car park and Class 3 guest house on the ground and first floors. Mr Curran identified that the following fire safety measures would be required by the BCA if the Property were to be classified as a combined Class 7a, 9b and/or 3 building:

1. automatic fire detection and alarm system;

2. fire seals on all openings;

3. lightweight fire resisting construction;

4. warning and operational signage;

5. maximum capacity signage;

6. bounding construction to separate all guest rooms from each other and from common areas;

7. self-closing fire doors for each guest room;

8. fire resistant covering on the floor in between the ground and first floors;

9. a fire rated ceiling for the top storey;

10. fire protection of the service penetrations between guest rooms, ceilings and floors;

11. travel distances to an exit on the first floor were excessive and would need to be addressed;

12. emergency lighting would need to be installed in every room or space on the ground floor, over required stairways and in the public corridor on the first floor;

13. exit signage;

14. a hydrant system;

15. a hose reel system (for the Class 7a and 9b portions of the Property);

16. portable fire extinguishers;

17. automatic shutdown of air handling systems (for the Class 9b portion of the Property);

18. fire and smoke dampers where common air handling systems penetrate floors/ceilings and guest rooms;

19. a smoke alarm system in guest rooms and public corridors; and

20. assuming 200 persons being at the Property, an exit width of two metres is required.

55. Without these measures the Property would not contain adequate fire safety measures to comply with the BCA. The occupants of the function centre or guest house would be in a position of danger without such measures.

56. Mr Curran was cross-examined about why he classified different parts of the premises as Classes 3, 7a, 9b. He was told by council officers that the purpose of the use of the Property was for entertainment and recreation. He agreed that a guesthouse has the potential for overnight sleeping.

Affidavit of Mr Austin

57. Mr Austin inspector of police with The Hills Local Area Command swore an affidavit on 13 December 2017. Mr Austin has been employed with the police for approximately 20 years.

58. On Saturday 9 December 2017 Mr Austin was the duty officer for The Hills Local Area Command and the Ku-ring-gai Local Area Command. At the commencement of his shift at 6.00pm Mr Austin was informed about events occurring at the Property. At around 9.00pm he drove an unmarked police vehicle to the Property.

59. Upon arriving at the Property Mr Austin observed a number of people dressed in suits and dresses walking within the Property’s boundary. He also observed coloured lights and from within the police vehicle (with the windows closed) could hear music emanating from the Property. Mr Austin drove to the front gate of the Property, parked the vehicle and made a video recording of his observations. A USB stick containing the video was annexed to Mr Austin’s affidavit.

60. After making the video recording Mr Austin continued to observe the Property and saw a number of people dressed in suits and dresses sitting at tables and chairs in an outdoor area of the Property. Mr Austin estimated that there were approximately 50 people in the outdoor area. He could hear music emanating from the Property which was at an offensive level.

61. Mr Austin formed the view that there was a wedding being conducted at the Property. After approximately 10 minutes of making observations Mr Austin left the Property. On Sunday 10 December 2017 Mr Austin sent an email to Mr Woods detailing his observations of the previous night, a copy of which was annexed to Mr Austin’s affidavit.

Affidavit of Mr Ibrahim

62. Mr Ibrahim senior community safety officer with the Council swore an affidavit on 13 December 2017. On Friday 8 December 2017 Mr Ibrahim was asked by Mr Woods to inspect the Property over the weekend of 9 and 10 December 2017.

63. On Saturday 9 December 2017 Mr Ibrahim drove to the Property. He initially parked at the front boundary of the Property. When parked in this position Mr Ibrahim observed what appeared to be a bride and groom having photographs taken inside the grounds of the Property. Mr Ibrahim took two photographs of his observations which were annexed to his affidavit.

64. Mr Ibrahim then drove the motor vehicle and parked in front of the gated entrance to the Property. When parked in this position Mr Ibrahim observed people organising chairs, tables and outdoor lighting. He also saw a woman who appeared to be dressed in a bridesmaid’s outfit. Mr Ibrahim took four photographs of his observations which were annexed to his affidavit. He then left the Property.

65. On Sunday 10 December 2017 Mr Ibrahim drove back to the Property. He parked outside the gated entrance to the Property. He did not see any people at this time. Mr Ibrahim observed the tables, chair and outdoor lights which had been set up the previous afternoon. He took two photographs of his observations which were annexed to his affidavit and then left the Property.

Affidavit of Mr Singh

66. Mr Singh land use coordinator with the Council swore an affidavit on 12 December 2017. On Saturday 9 December 2017 Mr Singh received a telephone call from Mr Ibrahim who told Mr Singh about observations he had made of the Property.

67. Later that afternoon Mr Singh received a telephone call from a person who identified herself as Ms Linardon-Carabetta. She told Mr Singh that she lived on Porters Road Kenthurst and that a function was being held at the Property with loud music and drums. There were lots of cars inside the grounds of the Property. Another large function had been organised two weeks before with 400 young people attending the Property. Mr Singh stated that he was aware of the issues at the Property and a council officer had already attended. If there were issues with noise Ms Linardon-Carabetta should call the police. Ms Linardon-Carabetta said she had already contacted the police who said they would attend when they were available. Mr Singh stated that the Council had commenced proceedings in relation to the use of the Property and were attempting to obtain an injunction in the meantime.

68. During the evening of 9 December 2017 Mr Singh received another telephone call from a person who identified herself as Ms Pye. She told Mr Singh that there was a wedding being conducted at the Property. Ms Pye had called the police about loud music and drums being played at the Property. Mr Singh said he would be attending the Property shortly.

69. Later that evening Mr Singh received a telephone call from a person who identified himself as Mr Carabetta. He stated that his wife had called earlier that day. He informed Mr Singh that the wedding function was still being conducted and was causing a lot of noise. Mr Carabetta said he had taken photographs of the event. Mr Singh said he was about to attend the Property and requested that Mr Carabetta send the photographs he had taken.

66. At approximately 7.00pm Mr Singh arrived at the Property. He observed around 30-40 motor vehicles parked in the front driveway area of the Property. He took three photographs of these observations which were annexed to his affidavit. Mr Singh observed a number of chairs and tables as well as outdoor lighting and decorations in the pool area of the Property. He took two photographs which were annexed to his affidavit. Mr Singh observed a number of people in suits and dresses walking around the pool area.

67. A young man walked to the front gates of the Property and asked Mr Singh if there was anything wrong. Mr Singh replied that he was from the Council and was attending the Property due to complaints of noise and unauthorised use. The man replied that it was a wedding and reception party. Mr Singh asked to speak with the person organising the function. The man said he would get the groom. Another man then approached the front of the Property and identified himself as the groom. The groom said that the function would start and finish early and that the music and drums had finished. Mr Singh asked the groom how he had come to hire the Property. He responded saying that his family were long-time friends of Ms Needham and she had allowed them to use the Property free of charge. Mr Singh asked how many people were attending the function and when it would finish. The groom said there were about 70 guests and that the function would finish by 9.00pm.

Affidavit of Mr Cabusas

72. Mr Cabusas ranger with the Council swore an affidavit on 7 December 2017. On Friday 24 November 2017 Mr Cabusas was requested by Mr Woods to inspect the Property over the weekend commencing 25 November 2017.

73. At about 11.00am on 25 November 2017 Mr Cabusas drove to the Property with council ranger Mr Monteleone. The front fence of the Property was covered in black mesh. There were a number of portable toilets inside the front boundary fence. The front gates of the Property were open so that Mr Cabusas was able to see a large marquee in the pool area. At the time there were three people who appeared to be between 20 and 30 years of age in the pool area. There were a number of pool toys underneath the marquee and a number of American flags hanging from the roof. A sign on the balcony fence displayed the words “one degree”. Mr Cabusas took 11 photographs which were annexed to his affidavit.

74. At about 3.30pm Mr Cabusas conducted a further patrol of the Property. He observed a large coach parked in Ascot Road. There were three vehicles parked outside the Property. A red food truck with the wording “street sliders” drove inside the grounds of the Property. Mr Cabusas estimated that he saw about 50 people in the pool area of the Property. He could hear music which was audible from inside the motor vehicle with the engine running. Mr Cabusas took nine photographs during this time which were annexed to his affidavit.

75. While parked outside the Property a security guard approached Mr Cabusas’ vehicle and introduced himself. He told Mr Cabusas that the event was a birthday party and asked if there was anything wrong. Mr Cabusas said that there had been ongoing complaints about parties held at the Property. He asked the security guard what time the event would finish. The security guard said it would finish around 9.30pm but could ask for it to finish earlier if there was a problem. The security guard offered to lower the volume of the music and to escort Mr Cabusas to the owner of the Property. Mr Cabusas said that neither was necessary as he was only assessing the situation. Mr Cabusas and the security guard exchanged contact details and Mr Cabusas left the Property.

76. At about 4.00pm on 25 November 2017 Mr Cabusas received a missed telephone call. He called the number and spoke to the security guard. The security guard said he had spoken to the owner and reduced the volume of the music. He asked if there was anything further they could do. Mr Cabusas said that there was nothing further and that if there were any other complaints he would be in contact.

77. On 26 November 2017 Mr Cabusas attended the Property. Mr Cabusas entered the grounds of the Property through the front gate and observed a black sedan with registration number “NBN” parked outside the front door. He knocked on the front door. The door was not opened. A woman on the other side of the door said “[w]ho is it?” Mr Cabusas introduced himself and said that he believed a party was held at the Property the previous night. Ms Needham identified herself and said the party was for her family. She said that Mr Cabusas was not permitted to enter the Property and that the Council was beginning to abuse her. Mr Cabusas stated that he was permitted to enter the Property up to the front door to speak with her. Following this conversation Mr Cabusas left the Property.

Affidavit of Mr Naidu

78. Mr Naidu land use officer with the Council swore an affidavit on 7 December 2017. Mr Naidu was familiar with the Property and had been asked to inspect the Property on previous occasions.

79. On Saturday 25 November 2017 Mr Naidu was on call. He received a telephone call from a resident named Peter who informed him of something taking place at the Property. Following this telephone call Mr Naidu received three separate phone calls from three other people informing him that they were residents of Kenthurst and that there was an event taking place at the Property.

80. Mr Naidu called Mr Woods who asked him to attend the Property at night to make observations. Mr Naidu attended the Property at approximately 8.30pm on 25 November 2017. Upon arriving outside the front gate of the Property Mr Naidu remained in his vehicle and made the following observations:

1. the front fence of the Property was covered in material so that it was not possible to see through the fence. There was a gap in the gate from which Mr Naidu could see activities being carried out inside the Property;

2. a man who appeared to be dressed as a security guard was standing at the gate;

3. there was a large group of people standing in the pool area of the Property;

4. there were flashing lights in the pool area;

5. there was loud music which seemed to be coming from the pool area; and

6. there were five large buses parked at the front of the Property, of which Mr Naidu took two photographs which were annexed to his affidavit.

81. Mr Naidu made a video recording of his observations whilst outside the Property, a disc containing the video recording being annexed to his affidavit. After making these observations Mr Naidu left the Property.

82. On 30 November 2017 Mr Naidu received an email from a council employee named Ms Newman providing details about the event which took place at the Property on 25 November 2017. Ms Newman had conducted a social media search and found references to an event called “Back to Bel Air” held at the Property on this date. A copy of the email was annexed to Mr Naidu’s affidavit.

83. Mr Naidu conducted a Google search using the reference “Back to Bel Air” and was directed to the website The website provided details of an event called “Back to Bel Air” at the Property on 25 November 2017. The website detailed that the general admission price of the event was $110, the event was a “secret party”, included “BYO” alcohol, a live DJ and beer pong. Mr Naidu made a number of screen shots of the website which were annexed to his affidavit.

84. Mr Naidu also conducted an internet search of the Facebook page of a Mr Whyte. The Facebook page contained 476 photographs of the event that took place at the Property on 25 November 2017. Mr Naidu annexed multiple photographs of the event from the Facebook page. Mr Naidu believed the photographs were taken at the Property as they depicted features he had observed while at the Property previously. Mr Naidu annexed to his affidavit a screenshot of a comment made by Mr Whyte on his Facebook page to the following effect:

Happy Friday!!! Massive thanks to everyone that came to “Back to Bel Air” last Saturday! We had an amazing time with you all! Here are the pics, tag away and spread the 1o Degree love.

NOT IMPLEMENTED: support for w:pgNum -

Craig Whyte George Davenhill Zach Harrison

start="85">

Mr Naidu then viewed the Facebook page of a “Mr Davenhill”. Mr Davenhill identified himself as the co-founder of “1º Degree”. The profile picture on this page was of a pool which Mr Naidu recognised to be the pool at the Property. A screenshot of Mr Davenhill’s Facebook page was annexed to Mr Naidu’s affidavit. A second screenshot of the following comment was also annexed to Mr Naidu’s affidavit:

Myself, Craig and Zach would like to give a massive shout out to everyone who made “1” degree – back to bel air such an incredible success! Everyone from the DJ’s, bus coordinators, events assistants, set up crew, videographers and photographers, the man in the sky for the 30° weather, but most of all to the loyal “1” degree crowd for making it the most fantastic event we have ever thrown! Heres a little throwback for you to enjoy – more material to follow!

86. A video of the events which took place at the Property on 25 November 2017 was also located on Mr Davenhill’s Facebook page. A USB stick containing a video of Mr Naidu watching the video was annexed to Mr Naidu’s affidavit.

87. Mr Naidu then conducted an Instagram search using the reference “One degree”. This search showed photographs of the event. Annexed to Mr Naidu’s affidavit were 17 photographs that he observed from this search. Mr Naidu conducted a further Instagram search using the reference “Back to Bel Air”. This search showed photographs of the event on 25 November 2017. Annexed to Mr Naidu’s affidavit were nine photographs that he observed from this search. Mr Naidu conducted a further Instagram search using the reference “The Lost Boys”. This search showed photographs of the event. Annexed to Mr Naidu’s affidavit were two photographs that he observed from this search.

88. In conducting the Instagram searches Mr Naidu observed a link to a website. The website contained a photograph placed on the website at 1.02am on 27 November 2017. Mr Naidu annexed a screenshot of this photograph to his affidavit. The website also contained a photograph of a person dressed in a black shirt who appeared to be the person Mr Naidu recognised as Ms Needham.

89. Mr Naidu conducted a search of the Airbnb website using the address of the Property. He observed a page advertising a premises referred to as “l’Abode”. Mr Naidu recognised the premises as the Property. He annexed a screenshot of the page to his affidavit.

Affidavit of Mr Miller

90. Mr Miller director of Darsy Holdings Pty Ltd swore an affidavit on 17 July 2017. Mr Miller resides in Porters Road Kenthurst. Mr Miller’s property is approximately 100 metres “as the crow flies” from the Property. He annexed an aerial photograph showing the location of his property to his affidavit.

91. Mr Miller has resided at his property for 16 years. He presently lives with his wife, daughter, son-in-law and five-week old grandchild. He described the area in Kenthurst where his house is located as rural residential and as being generally peaceful and quiet.

92. Over the last two to three years Mr Miller observed that the Property was being used for what appeared to be functions for many people. He became aware of these functions due to the presence of motor vehicles parked on Porters Road and Ascot Road. Mr Miller had also heard noise emanating from the Property in the form of music and people’s voices.

93. During 2016 the functions at the Property seemed to occur more regularly. On 27 August 2016 the disturbance caused by functions on the land seemed to “come to a head”. On this day Mr Miller observed a number of police cars patrolling Porters Road and Ascot Road and a police helicopter hovering over the Property. A number of other cars were parked in Porters Road and Ascot Road. Passenger buses were also driving onto the grounds of the Property.

94. Mr Miller complained to the Council for the first time after the function on 27 August 2016. He made the complaint because of the noise and the increasing frequency of the functions.

95. On or around 21 April 2017 Mr Miller received a letter dated 21 April 2017 from Ms Needham stating that she was not using her property for an illegal purpose. She was occasionally holding fundraising activities. A copy of the letter was annexed to his affidavit. Mr Miller responded to the letter via email on 15 May 2017 stating that the functions held at the Property did not appear to be charitable functions and that other neighbours had also complained about Ms Needham’s use of the Property. A copy of the email was annexed to Mr Miller’s affidavit.

96. Mr Miller stated that the main impact experienced by him and his family of the functions was the noise emanating from the Property. The functions were often hosted outside and in the pool area of the Property. The sound of loud music and voices amplified by a microphone could be heard within Mr Miller’s house. The noise prevented Mr Miller from sleeping at night. During the functions motor vehicles would sometimes park outside Mr Miller’s house. He was often disturbed by the sounds of engines revving and doors opening and closing when this occurred. The noise emanating from these functions and the motor vehicle presence disturbed Mr Miller’s peaceful enjoyment of his property.

Affidavit of Mr Levison

97. Mr Levison a managing director and resident of Ascot Road swore an affidavit on 5 February 2018. Mr Levison lives with his wife and two children aged 10 and 13 years. He has resided in Ascot Road for 11 years. Mr Levison’s house is located directly across from the Property, approximately 25-30 metres from the front gate of the Property and 50-60 metres from the dwelling residence of the Property. Mr Levison annexed an aerial photograph showing the location of his property. The part of Ascot Road on which Mr Levison’s property is located experiences limited traffic movement and is very quiet.

98. On the morning of 30 January 2018 Mr Levison observed a small truck with the name “Thrifty” printed on the side parked outside his property. The truck then drove inside the grounds of the Property. A short time later three cars and a van drove inside the grounds of the Property and another car parked outside Mr Levison’s property. Five minutes later a further five cars parked outside Mr Levison’s property. People alighted from the vehicles parked outside Mr Levison’s property, had a conversation and then drove inside the grounds of the Property. In the next 10 minutes a car, a utility vehicle, three vans and a large truck drove into the grounds of the Property. Mr Levison annexed three photographs taken by his wife of two of the trucks and two of the vehicles that drove inside the grounds of the Property. In the next two hours, Mr Levison, although not constantly monitoring traffic movements, observed a number of other instances where cars, trucks and vans entered the Property.

99. Mr Levison left his property at 11.00am that day and returned at 3.45pm. Between 3.45pm and 4.30pm he observed a number of taxis exit the Property. Many of the vehicles parked inside the Property also exited the Property.

100. On 31 January 2018 Mr Levison conducted an internet search and found an Instagram page for Andre Cordova containing photographs and posts showing that the filming of a music video took place at the Property over a number of days. Mr Levison believed that the trucks and people he observed on 30 January 2018 were involved in filming the music video with Andre Cordova because of the dates of the posts and the description of the address. He also recognised the background in some of the photographs as being at the Property. Mr Levison annexed 10 screenshots of the Instagram page to his affidavit.

101. One of the first occasions the Property was used for filming was for the television show “Beauty and the Geek”. Since that time Mr Levison observed occasions where the Property was used for filming. He had observed people using lighting and video equipment at the Property. On these occasions there would be many people assisting and a lot of traffic movement near and inside the Property. The filming events ranged in scale from wedding parties to large scale events such as filming of the show “My Kitchen Rules”. Mr Levison stated that the filming events had increased in number since 2014.

102. On each filming occasion Mr Levison’s peaceful enjoyment of his property was disturbed. Noise from traffic and from people engaged in filming at the Property could be heard within Mr Levison’s home. The presence of motor vehicles and people in the area cause dogs (including Mr Levison’s own two dogs) to bark.

Evidence of events at the Property after 8 February 2018

Affidavit of Mr Levison

103. Mr Levison swore a further affidavit on 25 May 2018. Mr Levison was aware of the court orders made on 8 February 2018. On Friday 9 February 2018 Mr Levison was at his property when he observed two cars park in front of the Property. There was writing on one of the cars which read “Hip Hop”. Both cars drove into the grounds of the Property. Later that day a grey stretch limousine entered the Property. Three women were standing on the front verandah of the Property and spoke to the person driving the limousine. The limousine then drove to the rear of the Property. In the next four hours Mr Levison observed 21 vehicles drive onto the grounds of the Property. During this time Mr Levison saw a number of people walking around the gardens of the Property taking photographs. Later that night music began to emanate from the Property. The music was quite loud and played from around 8.45pm to 10.15pm.

104. At around 9.50pm Mr Levison observed a white utility vehicle parked on the road outside the Property. He thought it may have been a council officer and approached the vehicle. He had a conversation with the driver of the vehicle to the effect that the driver was not from the Council and was there to pick up a groom from a pre-wedding party. An occupant in the vehicle asked if there were often parties at the Property. Mr Levison said that there were. The driver of the vehicle said that the bride was from overseas and was renting the house for the pre-wedding party. The white utility vehicle then drove onto the grounds of the land and was followed by four other vehicles. Each vehicle beeped its horn loudly and continuously while driving onto the Property. Approximately 29 cars left the Property between 10.40pm and midnight.

105. On Sunday 11 February 2018 Mr Levison was at his property when he observed two vans and a car parked in the driveway of the Property. One of the vans which had the words “Bespoke Wedding Cakes, Desserts & Edible Favours” printed on it then left the Property. A photograph of the van was annexed to Mr Levison’s affidavit. Between 11.01am and 1.37pm on that day Mr Levison observed 42 vehicles enter the land. One of the vehicles to enter during this period was a van from which a man and a woman took out a number of inflated balloons which they took to the pool area. A photograph of these people was annexed to Mr Levison’s affidavit.

106. Mr Levison was concerned about the amount of activity at the Property on 11 February 2018 given the Court order made on 8 February 2018 restraining the use of the Property for functions and events. Mr Levison undertook a search of Facebook and Instagram. He found the page of Celebrations (NSW) Pty Ltd which appeared to indicate that a kitchen tea had taken place at the Property on 11 February 2018. Mr Levison annexed a screenshot of the Facebook post indicating the event at the Property.

Affidavit of Mr Ibrahim

107. Mr Ibrahim swore a further affidavit on 25 May 2018. On Saturday 10 February 2018 Mr Ibrahim was asked by Mr Woods to inspect the Property. That afternoon Mr Ibrahim drove to the Property. From outside the front gate of the Property Mr Ibrahim observed what appeared to be a wedding celebration occurring at the Property. He observed a number of vehicles parked on the driveway of the Property. There were two limousines as well as a number of other white vehicles with ribbon attached to their front hoods. There were many vehicles parked on Ascot Road. Mr Ibrahim observed a photographer with a camera at the front door of the Property and could hear music and chanting emanating from the Property.

135. The event booked on 30 April 2016 (referred to above at [21]-[22]) was booked through Airbnb suggesting that the use of the Property on that occasion was consistent with use for bed and breakfast accommodation which is permitted in the zone. Finally the Council was aware of the event in September 2016 as advised in Mr Montgomery’s letter noted above at [15]. The Council’s email dated 12 September 2016 (Exhibit 1) stated that the event was permitted because it was a charity function for a non-profit organisation and would therefore be exempt development. The Council’s email did not specify a number of attendees or any other conditions for the event.

136. The Property was not used as a function centre. All functions held at the Property were consistent with its use as a residential dwelling. The property can be used for private functions and parties in the usual course of occupying a home. The Council’s evidence does not establish that the functions at the Property were not private functions which are permitted in a residential dwelling. There is also no evidence as to how the building operates. A distinction can be made between activities which occur inside as opposed to outside the Property. A private land owner is unconstrained in what they do inside their Property.

137. When the Property was booked as bed and breakfast accommodation the use of the Property by the tenants was unconstrained. Tenants are able to hold functions at rented premises. The evidence shows events which are consistent with a bed and breakfast use, which is permissible and are otherwise part of the normal use of a dwelling house. Any disturbance to neighbours from activities can be managed by the Council’s usual regulatory controls. The Council bears a higher onus of showing that the prohibited use as a function centre is occurring in these circumstances.

138. A function centre requires a certain type of building. The term “function centre” as defined in the LEP gains colour from the other words in the definition which refer to premises such as convention centres, exhibition centres and reception centres. These generally require a form of building reflecting such a use with appropriate parking, a stage and necessary facilities. The dwelling house of the Property does not have such a form. No expert evidence as to the specific building type required for a function centre is in evidence. A function centre cannot be run in a dwelling house given the definition in the LEP.

139. In relation to use of the Property as commercial premises the Council has the onus of showing that the uses were commercial in nature. In the absence of evidence that there was financial gain or a commercial undertaking for the photo shoot which took place on 29 March 2018 the Council cannot discharge its onus of proving that the Property was used as a commercial premises on that occasion. Further the Council relied on use of the Property for filming as evidence of use as a “commercial premises”. The use of the Property for commercial photography (affidavit of Mr Singh above at [110]-[111]) and the ancillary activity of erecting a tent or marquee is exempt development within Pt 2 Subdivs 4 and 6 (set out above in [7]) of the SEPP. The Council’s onus of proof to show that these uses are not exempt development has not been discharged.

Prohibited uses of property established

142. The relevant section of the Land Use Table for the RU6 rural transition zone is extracted above at [6]. The objectives of the zone are to protect and maintain land that provides a transition between rural and other land uses and to minimise land use conflicts within adjoining zones inter alia. Any activity not referred to in item 2 or 3 is prohibited. “Function centres” and “commercial premises” as defined in the LEP are prohibited in that zone. “Bed and breakfast accommodation” is defined in the LEP and is permissible without development consent in the rural transition zone. Commercial premises include business premises which is also defined in the LEP. Filming is widely defined in the dictionary to the LEP to include commercial videography but not still photography.

Use as function centre established

143. The definition of a “function centre” as a building or place used for events and functions is broad. “Event” and “function” are not defined in the LEP. Their plain and ordinary meaning is wide. The Macquarie Dictionary Online (2017) defines “event” as “…anything that happens or is regarded as happening; an occurrence, especially one of some importance…” A “function” is defined as “…any ceremonious public or social gathering or occasion…” In general parlance a party is an event and a wedding is a function. There is no statutory construction reason to confine the definition by reference to reception centres inter alia to the use of a particular building form contrary to Ms Needham’s submission to that effect. The focus of the definition is the nature of the activities carried out not the form of the building or place. It follows that a dwelling house and its surrounds can be used as a function centre within the meaning of the definition.

144. The definition of “function centre” in the LEP does not require that activities be for profit. Private functions regardless of whether they are charged for are events or functions to which the definition applies.

145. There is provision in the LEP for temporary use of land for such things as a community event in Sch 2 Exempt Development. Such an event was held with the Council’s acknowledgment in September 2016. A development application can be made for a temporary use under cl 2.8. Temporary uses must not have adverse effects on the neighbourhood (see the LEP Sch 2 at [6] above). Apart from noting this matter it has no role to play in my reasoning. It can provide no assistance to Ms Needham in the absence of a development application for a temporary use being made and granted.

146. As Ms Needham submitted private land owners can hold parties and functions such as weddings at their homes. Whether such a use amounts to a function centre will be a matter of fact and degree. The whole of the Council’s evidence must be viewed in reaching a conclusion. A conclusion that events and functions amount to the conduct of a function centre will be more readily drawn where there is evidence of a regular use of a premises for such purposes, where the scale of the events (in terms of the number of attendees and vehicles and extent of event planning required) is significant, where a property is advertised as available for hire for events and functions and where the function or event is for profit. None of these factors are essential to making a finding that a premises is a function centre but taken in combination may indicate such a use.

Evidence of events or functions 2016-2018

147. In 2016 there was evidence of at least eight events and functions held at the Property not including the charity event in September 2016 which Mr Woods was aware of. A Mardi Gras event was held on 5 March 2016 (see [14] above), brought to the attention of the Council by a complaint made by a resident. The complaint stated that “hundreds” of people were in attendance at the party.

148. An event held on the long weekend of 25-28 March 2016 was brought to the attention of the Council by complaints made by a resident in the area and confirmed by an inspection by a council officer as summarised above in [15]. The council officer was informed by a hirer that the organisers had hired the Property for $12,000.

149. On 2 April 2016 a party was held at the Property. It was brought to the attention of the Council by complaints made by residents in the area (see [16]-[18] above). The wedding had a security guard, portable toilets and food vans in the front grounds of the Property. One of the complaints stated that the Property was being advertised as a venue for hire on a website created for the Property. Another complaint stated that there were 30 vehicles on the grounds of the Property and some 300 guests in attendance at the event on 2 April 2016.

150. On 30 April 2016 a wedding was held at the Property (see [21] above). A council officer inspected the Property on that day and was informed by an attendee at the function that there would be 50-60 people in attendance. The attendee had hired the Property through Airbnb. On 19 June 2016 a wedding was held at the Property brought to the attention of the Council by a complaint made by a resident in the area (see [23] above). The complaint stated that numerous vehicles were present at the Property on that day. On 27 August 2016 a wedding was held at the Property brought to the attention of Council by a complaint made by a resident in the area (see [24] above). The complaint stated that numerous people and vehicles were present at the Property that day.

151. On 13 December 2016 a party was held at the Property brought to the attention of the Council by Chief Inspector Szabo of the Hills Local Area Command and confirmed by an inspection by council officers (see [26]-[27] above). There were approximately 40 people in attendance on that occasion. On 16 and 17 December 2016 the Property was used for a function which was brought to the attention of the Council by a complaint made by a resident in the area (see [28] above). The complaint recorded loud music and numerous cars at the Property over the course of 16 and 17 December 2016.

152. In 2017 there was evidence of at least six events and functions. On 27-29 January 2017 an event was held at the Property brought to the attention of the Council by a complaint by a resident in the area (see [30] above). The complaint stated that 20-30 people were present at the Property and 10 vehicles were inside the grounds of the Property. On 3 and 4 February 2017 council officers attended the Property and confirmed that an event took place over the course of the two days (see [31]-[32] above). A file note of Mr Singh stated that approximately 38 vehicles parked on Ascot Road outside the Property and a further 20 vehicles parked inside the grounds of the Property on 4 February 2017.

153. On 25 March 2017 council officers attended the Property and confirmed that a wedding was taking place on that day (see [34] above). Mr Singh recorded that approximately 30-35 vehicles were parked on Ascot Road on that day and complaints had been made to the Council by six residents in the area. On 1 April 2017 a party was held at the Property brought to the attention of the Council by a complaint made by a resident in the area (see [35] above). The complaint recorded 28 vehicles including three buses on the grounds of the Property. On 25 November 2017 a party was held at the Property brought to the attention of the Council by a complaint made by a resident in the area (see Mr Wood’s affidavit sworn 7 December 2017 commencing at [37] above). A council officer inspected the Property on that day and observed at least 50 people on the grounds of the Property. On 9 December 2017 a wedding took place at the Property brought to the attention of the Council by a complaint made by a resident in the area (see affidavit of Mr Singh sworn 12 December 2017 commencing at [66] above). Mr Singh attended the Property and observed some 30-40 vehicles in the front driveway area of the Property. After speaking with an attendee at the event Mr Singh noted that there were approximately 70 guests attending the wedding on that day.

154. In 2018 there was evidence of at least two events or functions. On 9-10 February 2018 a wedding took place at the Property brought to the attention of the Council by a complaint made by a resident in the area and confirmed by inspections of a council officer (see affidavit of Mr Levison sworn 25 May 2018 commencing at [103] above). Mr Levison observed 26 vehicles enter the Property on 9 February 2018 and 29 vehicles leave the Property on the same day. On 11 February 2018 he observed 42 vehicles enter the Property. He noted that some of the vehicles appeared to be bringing food and party supplies to the Property. Mr Ibrahim of the Council also observed some 7 vehicles at the Property on 10 February 2018 and a bride and bridal party leaving the Property (see [107]-[108] above). On 28 April 2018 a wedding took place at the Property brought to the attention of the Council by complaints made by residents in the area and confirmed by an inspection by a council officer. Mr Singh of the Council observed some 60 vehicles parked inside the grounds of the Property on that occasion (at [112]-[114], [117]-[119] above).

155. While not all events the subject of evidence are identified in the Points of Claim, this evidence was served on Ms Needham many months ago so that she has been aware of it for a long time. I consider it is fair that all the events and functions referred to in the Council’s evidence be relied on. A reasonable inference can be made that when Ms Needham’s neighbours complained of activities taking place at the Property some form of function or event was in fact occurring. Ms Needham’s submission to the contrary is rejected.

156. A charity event was held at the Property on 24 September 2016. The Council in its email dated 12 September 2016 (Exhibit 1) stated that such a use was permitted as it was for a non-profit organisation and was therefore exempt development. That cannot assist Ms Needham in the absence of any evidence from her that any other events the subject of evidence tendered by the Council were for charitable purposes.

157. I agree with the Council that use as bed and breakfast accommodation (if there is one) cannot be used as an open door to any form of illegal use during the occupancy of a dwelling by those renting it overnight. Ms Needham’s counsel submitted that because use of the Property on several occasions complained of was overnight that use complied with the permissible use as bed and breakfast accommodation. Unlawful activity does not become invisible for the planning control purposes of an LEP by occurring on premises which happen to have been rented overnight for an ostensibly lawful use.

158. Ms Needham has not put on evidence seeking to establish that the overnight rental of the Property was at all times for bed and breakfast accommodation. Her counsel sought to draw inferences of such a use from the Council’s evidence that on one occasion a booking was made through Airbnb for the wedding held on 30 April 2016. Ms Needham’s counsel submitted that gave rise to the inference that the Property was booked for overnight bed and breakfast accommodation, a lawful use.

159. There is no reference in any of the advertising material or Facebook material in evidence to bed and breakfast accommodation. The Property was advertised as an “…ideal escape for a luxurious holiday…” from the advertising material downloaded from Facebook on 19 June 2016 by Mr Woods referred to above at [23].

160. Ms Needham as landowner controls the use of her home. She cannot blame Stayz.com for renting out the Property for a party when she was on holidays as recorded in the meeting with council officers on 13 April 2016 referred to above at [19]. In any event this appears to have only happened on one occasion.

161. The rules of hiring the Property for the event on 13 December 2016 refer expressly to not holding parties. Attached to Mr Needham’s response to the Council’s notice to provide information was an invoice for $6,000 paid for an event referred to as a Christmas party. It is plain from the Council’s evidence of complaints in relation to that event referred to above at [26] that Ms Needham did not enforce that rule on that occasion. The “Property Rules” contain a heading “Holiday Rental – House Rules for Guests and Visitors”. They do not otherwise refer to use of the Property as for bed and breakfast accommodation.

162. The Council’s evidence overwhelmingly supports a finding that the Property was being used regularly for large events and functions requiring substantial organisation booked through Airbnb on at least one occasion. The evidence of the number, scale and commercial arrangements for events and functions at the Property has been proved by the Council on the balance of probabilities, giving rise to a finding that the Property was being used in the period 2016 to date for the prohibited purpose of a function centre. Ms Needham’s counsel’s submission that the Council bears a higher onus of proof because the use of a private home is in issue lacks any authoritative basis.

Use for commercial videography and photography established

163. Commercial premises are defined to include business premises inter alia. Business premises are defined in the dictionary to the LEP in (a) as meaning a building or place at or on which:

…an occupation, profession or trade (other than an industry) is carried on for the provision of services directly to members of the public on a regular basis…

164. Such a use is prohibited in the RU6 rural transition zone. Regular use of the Property for commercial videography and still photography would satisfy the definition of business premises.

165. On 29 March 2018 a photo shoot took place at the Property brought to the attention of the Council by a complaint made by a resident in the area and confirmed by an inspection by a council officer (see [109] above). There were at least seven people in attendance at the photo shoot.

166. The affidavit of Mr Levison sworn 5 February 2018 commencing at [98] above stated that filming has been taking place at the Property since 2014 for television shows including “Beauty and the Geek” and “My Kitchen Rules”. In addition, on 30 January 2018 a music video was filmed at the Property. As detailed at [102] above these filming events have had an adverse impact on Mr Levison’s peaceful enjoyment of his property due to the noise and traffic created by the filming events. This evidence establishes a regular pattern of use of the Property for commercial videography and photography. The definition of “business premises” is satisfied by this activity so that a prohibited use of the Property for commercial premises has been established on the balance of probabilities by the Council.

No exempt development proved

167. Ms Needham submitted that use of the Property for filming and the activity of erecting tents or marquees is exempt development under Pt 2 Subdivs 4 and 6 of the SEPP. There is no onus of proof borne by the Council to prove that the activities the subject of the numerous affidavits are not exempt development. That could have been a defence filed and the subject of evidence from Ms Needham but was not. As the Council submitted if any filming conducted at the Property was exempt development under Subdiv 4 of the SEPP there are a number of development standards which would need to have been satisfied as identified in part in [7] above. There is no evidence from Ms Needham on this matter. I can draw no conclusion that the filming activities on Ms Needham’s land were exempt development. While the erection of tents and marquees can be exempt development a number of development standards must be complied with under Subdiv 6 of the SEPP. Some are set out above in the extract in [7]. Ms Needham has not tendered any evidence in relation to the satisfaction of these development standards in the SEPP. I can draw no conclusion that any marquee or tent erected at the Property was exempt development.

Ms Needham aware of planning controls

168. As the Council submitted since the communications with Ms Needham in February 2016 she and her town planner and solicitor at various times have been told of the Council’s view that she should not hold functions and events of the type that have clearly been occurring at the Property. The affidavit of Mr Woods sworn 26 May 2017 sets out the extensive correspondence between the Council and Ms Needham. Ms Needham was informed that use of the Property as a function centre was not permitted in the Council’s letter dated 26 February 2016 and in the Council’s emails dated 7 March 2016, 5 April 2016, 6 April 2016, 23 May 2016, 25 January 2017, 2 February 2017, 27 February 2017 and 31 March 2016. Ms Needham was also informed that use of the Property as a function centre was prohibited in her telephone conversation with the Council on 13 December 2016. The Council’s email to Ms Needham dated 31 January 2017 advised her that use of the Property in this manner would constitute a breach of the Order and would be contrary to the undertaking she provided to the Council’s solicitors in a letter dated 31 January 2017. Ms Needham had assured the Council during meetings on 13 April 2016 and 22 February 2017 that she would cease using the Property for functions.

168. Ms Needham has had ample opportunities to try and regularise her activities but has not done so. Her undertaking in January 2017 was worthless given her continued characterisation of the use of her land at all times as bed and breakfast accommodation or as a home. The Council has had no option other than to commence these proceedings.

Ms Needham has failed to comply with 8 February 2018 court orders.

170. Evidence from officers of the Council and Mr Levison establishes that Ms Needham did not comply with the court orders made on 8 February 2018. On 9 February 2018 the day after the orders were made Mr Levison observed some 29 vehicles enter the Property at [103]-[104] above. Mr Levison spoke with two occupants in one of the vehicles who stated that a pre-wedding party was being held at the Property. On the night of 9 February 2018 Mr Levison recalled loud music being played from 8.45pm-10.15pm at [103] above.

171. Mr Ibrahim of the Council attended the Property on 10 February 2018 and observed what appeared to be a wedding function at [107]-[108] above. He recalled seeing a number of vehicles some of which had white ribbon attached to their front hoods. He saw a woman in a wedding dress at the Property with what appeared to comprise a bridal party. Mr Ibrahim saw some 17 vehicles leave the Property with the bride and bridal party on that day.

172. On 11 February 2018 Mr Levison observed some 42 vehicles enter the Property at [105] above. One of the vehicles appeared to belong to a wedding catering business. Another vehicle delivered a number of inflated balloons to the Property. Mr Levison undertook an internet search which appeared to indicate that a kitchen tea had taken place at the Property that day at [106] above.

173. The affidavit of Mr Singh sworn 25 May 2018 commencing at [109] above states that he attended the Property on 29 March 2018 after receiving a complaint about activities being conducted at the Property. He observed what appeared to be a photo shoot with seven people present. On this occasion he spoke with Ms Needham who stated that there were five or six people and a hairdresser in attendance at the Property. Ms Needham told Mr Singh that she was permitted to have 10 sessions without approval. Ms Needham’s counsel submitted that there was no evidence that a commercial event was occurring. The dialogue with Ms Needham is set out in Mr Singh’s affidavit in which he asked her how many people were attending the photo shoot. The words “photo shoot”, the number of people present and their activities give rise to the inference of a commercial arrangement.

174. Mr Aaly of the Council attended the Property on 28 May 2018 (see [117]-[119] above). Upon arriving at the Property Mr Aaly observed decorations on the front gate. He spoke to Ms Needham who stated that she was having a small function for some long-time friends. After this conversation Mr Aaly left the Property and returned at 4.00pm. Upon returning he observed a congregation of people and a horse standing on Ascot Road.

175. Ms Needham has failed to comply with the court orders made in February 2018 set out above in [8] in that she has allowed the use of her property for events and functions on 9 February 2018, one day after the Court order not to, and 28 May 2018. At least one commercial photography event took place with more than the specified number of people attending on 29 March 2018 and not in compliance with the requirement to keep all vehicles parked on the Property.

176. As identified in Needham No 1 vacation of the hearing date meant that the relief sought by the Council on behalf of neighbours suffering from unlawful activity if granted by the Court was delayed. Orders restraining any use for a function centre and very limited commercial videography and photography were made. Those orders have been breached. The continuing unlawful activities have had an adverse impact on Ms Needham’s neighbours owing to loud noise emanating from the Property and traffic associated with the events, functions, photography and videography (see Mr Miller’s affidavit sworn 25 May 2018 commencing at [103] above and Mr Singh’s affidavit sworn 25 May 2018 at [109] and [112]-[113] above).

Ms Needham has been dilatory in her participation in these proceedings.

177. I accept the Council’s submissions based on the affidavit of Mr Baird solicitor dated 12 December 2017 setting out the history of the proceedings until December 2017 above in [121]-[126], my findings in Needham No 1 at [4]-[7] and Ms Needham’s conduct since 7 February 2018 (the first hearing) that Ms Needham has caused substantial delay and has been dilatory in these proceedings from the outset until the final hearing. I vacated the first hearing on 8 February 2018 to allow Ms Needham to obtain legal representation. There was no indication that legal representation was obtained by Ms Needham until the commencement of the second hearing in court on Monday 4 June 2018. Mr Fozzard of counsel appeared with his instructing solicitor without notice to the Council or the Court and said that legal advice and representation was only sought by Ms Needham on Friday 1 June 2018. No substantial challenge to any of the Council’s evidence has been made by Ms Needham. No written defence was filed and no request for particulars was made. An untenable strikeout application was made with no notice at the outset of the hearing. Extensive objections to the Council’s affidavit evidence were also made without notice.

Exercise of discretion to make a declaration and consequential orders

178. I have broad powers to be exercised judicially to make declarations and consequential orders under s 124 of the EPA Act. It is appropriate to exercise my discretion to make the declaration sought by the Council given the prohibited nature of the activities I have found to be occurring regularly at the Property. In relation to the making of orders restraining unlawful use, given (i) the continued unlawful use of the Property despite knowing the Council’s view these were unlawful and issuing an order requiring that Ms Needham cease using the Property for events and functions, (ii) Ms Needham acting in defiance of court orders made on 8 February 2018, (iii) the negative impact of her activities on her neighbours’ amenity and (iv) the absence of adequate fire safety measures in the building to render it safe for the large events held according to Mr Curran’s unchallenged evidence, it is essential that I make orders restraining the unlawful use of the Property.

179. I will confer with the parties on the terms of suitable orders. These will need to be very precise in order to clearly communicate to Ms Needham what she cannot do at her property.

Costs

180. The Council has been successful and the usual order is that its costs are paid by Ms Needham as provided by r 42.1 of the Uniform Civil Procedure Rules 2005. It seeks costs on an indemnity basis under s 98(1)(c) of the Civil Procedure Act 2005. Relevant principles are identified in Styles v Wollondilly Shire Council (No 3) [2001] NSWLEC 133 (Styles) and Westfield Management Ltd v Direct Factory Outlets Homebush Pty Ltd (No 4) [2005] NSWLEC 168 (Westfield Management (No 4)). In Styles Sheahan J found at [14] that for indemnity costs to be awarded there “…must be at least circumstances which are ‘out of the ordinary’, such as an element of abuse of process, ulterior or extraneous purposes, or unreasonableness.” In Westfield Management (No 4) at [35] I cited Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233 that the award of indemnity costs requires “…some special or unusual feature…” and Mason P (Clarke AJA agreeing) in Rosniak v Government Insurance Office (1997) 41 NSWLR 608 at 616 stating that “…the court requires some evidence of unreasonable conduct, albeit that it need not rise as high as vexation.”

181. It is appropriate to exercise my discretion to award costs on an indemnity basis in light of Ms Needham’s conduct throughout these proceedings in terms of her failure to diligently participate as required by numerous court orders and in breaching interim orders made in February 2018.

182. I will discuss with the parties the terms of final orders before finalising these. I will make a declaration as sought by the Council and a costs order in the Council’s favour on an indemnity basis at the appropriate time.

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Addendum made on 10 July 2018

183. In accordance with the terms of paragraph 182 in my judgment of 26 June 2018 I make the following orders:

1. The Court declares that the Respondent is unlawfully carrying out development contrary to the provisions of section 76B of the Environmental Planning and Assessment Act 1979 (“EPA Act”) on the land known as Lot 1 in Deposited Plan 31243 (11) Ascot Road, Kenthurst (“the Land”) in that the Respondent is using the Land for the prohibited purposes of a ‘function centre’ and ‘commercial premises’ as defined by The Hills Local Environmental Plan 2012 (“THLEP 2012”).

2. The Court orders that the Respondent by herself, her servants and agents be restrained from using, causing or permitting the Land to be used for the purposes of a ‘function centre’ as defined in the THLEP 2012 including the holding of events, functions, conferences, receptions including wedding receptions and the like.

3. The Court orders that the Respondent by herself, her servants and agents be restrained from using, causing or permitting the Land to be used for the purposes of a “commercial premises” including any form of commercial photography and commercial videography such as wedding photography and videography and the filming of television programs, television advertisements and music videos.

4. The Court orders that the Respondent by herself, her servants and agents be restrained from advertising, promoting, offering or making the Land available by any means, including via websites and/or services such as “Airbnb” or “Stayz” for:

1. The purposes of a “function centre” including the holding of events, functions, conferences, receptions including wedding receptions and the like; or

2. The purposes of a “commercial premises” including any form of commercial photography and commercial videography such as wedding photography and videography and the filming of television programs, television advertisements and music videos.

5. The Court orders that the Respondent is to pay the Applicant's costs of the proceedings on an indemnity basis.  This order does not vacate or replace any existing order requiring the Respondent to pay any part of the Applicant’s costs.

Amendments

15 August 2018 - Addendum to judgment of 26 June 2018 added on 10 July 2018.

Decision last updated: 15 August 2018