> Land and Environment Court of New South Wales CITATION : Ryde City Council v Chin (No 2) [2003] NSWLEC 162 PROSECUTOR Ryde City Council PARTIES : DEFENDANT Larry Chung Ka Chin FILE NUMBER(S) : 50050 of 2002 CORAM: Pain J KEY ISSUES: Prosecution :- alleged unlawful use of building for purpose of residential flat building - offence proved LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 121B Ryde Planning Scheme Ordinance CASES CITED: DATES OF HEARING: 01, 02/10/2002 DATE OF JUDGMENT: 10/03/2002 PROSECUTOR Mr CJ Leggat (barrister) SOLICITORS LEGAL REPRESENTATIVES: Pike Pike & Fenwick DEFENDANT in person JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 50050 of 2002 Pain J 3 October 2002 RYDE CITY COUNCIL Prosecutor v LARRY CHUNG KA CHIN Defendant Judgment 1. The Prosecutor has charged: the Defendant Larry Chung Ka Chin of 1A Kent Road, North Ryde in the State of New South Wales appear before a Judge of the Court to answer the offence against S 125(1) of the Environmental Planning and Assessment Act 1979 that on or about 21 November 2001 at North Ryde in the State of New South Wales the Defendant did carry out development for a purpose prohibited by an environmental planning instrument, namely use of the premises known as 1A and 1B Kent Road, North Ryde, which premises are zoned Residential 2A under the Ryde Planning Scheme Ordinance, for the purpose of a residential flat building, being a purpose prohibited under Clause 23 of the said Ordinance, contrary to S 76(B) of the said Act. 2. The relevant zoning for the premises at 1A and 1B Kent Road, North Ryde is Residential 2A and the erection or use of buildings as residential flat buildings is prohibited under the Ryde Planning Scheme Ordinance (the Ordinance). Residential flat building is defined in the Ordinance to mean "a building containing 2 or more dwellings". Furthermore, the Ordinance defines dwelling to mean "a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile". 3. It is necessary for the Prosecutor to prove the offence alleged beyond reasonable doubt. The Prosecutor relied on affidavits of previous tenants of the premises at 1A and 1B Kent Road, particularly affidavits of Peter Brown and Emma Howard. 4. Ms Howard gave evidence that she lived at 1/1A Kent Road, North Ryde with Chris Savage from August 2000 to December 2001. Her evidence was that she had exclusive occupation of the upstairs unit during that period and that the layout of the upstairs unit at 1A Kent Road consisted of a lounge, dining room, kitchen area, bathroom, another bathroom containing taps for a washing machine, and two bedrooms. She gave further evidence that when she arrived to take up residence there were two mail boxes outside 1A Kent Road and that the kitchen contained a sink and a Whirlpool stove with electric hotplates. She also gave evidence that there were two Asian students living downstairs when she and Mr Savage moved in and that they moved out in late August 2001, after which the Defendant and his family moved into the downstairs area on about 19 October 2001. Ms Howard vacated the premises on 16 December 2001. 5. The Defendant disputed some of the evidence of Ms Howard in relation to whether there were two mail boxes at 1A Kent Road when she first arrived. He submitted that there had in fact been only one mailbox and that he had installed one later at her request. Ms Howard did not agree with that submission. 6. The Defendant also disputed that two Asian students lived in the downstairs area at the time that Ms Howard arrived and they left in late August 2001, rather the Defendant submitted that there were numerous members of the Defendant's family visiting, house-minding and playing the piano. It was also disputed by the Defendant that the kitchen, as opposed to a bar area, existed in the upstairs area occupied by Ms Howard. 7. Peter Brown was a tenant of the premises known as 2/1B Kent Road, North Ryde and provided evidence in two affidavits to the effect that he and his wife had occupied 2/1B Kent Road, the ground floor or downstairs unit, initially under a six month written lease commencing on 16 November 1999. Attached to his affidavit sworn 20 May 2002 was the Residential Tenancy Agreement between himself and a company of the Defendant, which showed the premises that had been rented out were "2/1B Kent Road, North Ryde (ground floor unit)" . The rental bond details from the Department of Fair Trading also attached to his first affidavit sworn 20 May 2002 described the premises as ground floor 2/1B Kent Road, North Ryde. Mr Brown and his wife moved out of those premises in January 2002. 8. Mr Brown's evidence in relation to the layout of the premises he and his wife leased was that it was a two bedroom residence, included a living and lounge room, a kitchen, two showers, one bathroom and laundry with a shed in the backyard. He gave evidence of other tenants in the upstairs unit at 1B Kent Road who included Haydee de Gruzman who moved into those premises on 21 October 2001 and previously Min Ho You and his family. The upstairs unit at 1B, which Mr Brown gave evidence he visited on numerous occasions while visiting previous tenants Min Ho You and his family, was described as being identical in layout to his own unit. 9. It was clear from Mr Brown's evidence that he considered he had exclusive possession of the unit 2/1B Kent Road. He did not consider that he shared that unit with whoever was occupying the upstairs unit at 1/1B Kent Road. The only shared areas, according to his evidence, were the common downstairs front door, foyer, backyard and laundry. He also gave evidence that two people he believed to be Asian students were living downstairs at 1A Kent Road at the time he moved into his unit. 10. In cross-examination by the Defendant, Mr Brown stated that the front door to his apartment did have a lock on it and also that there was a lock on the front door to the foyer area of 1B Kent Road. Also in cross-examination the Defendant showed Mr Brown a statement which he had signed on 31 December 2001 stating that all amenities at 1B Kent Road were shared. Mr Brown stated on oath in the witness box that he had signed the statement under duress and it was not true that amenities were shared at 1B Kent Road. There were further disputes in relation to Mr Brown's evidence by the Defendant. In particular the Defendant disputed the contents of some of the conversations deposed to by Mr Brown. The Defendant denied that he had ever said to Mr Brown that "I have not finished converting next door yet". Mr Brown maintained his evidence on these issues and noted further in his affidavit that he also saw the Defendant carrying doors into number 1A Kent Road. 11. A further affidavit relied on in support of the Prosecutor's case was that of Mr Nagle, a Council officer. His evidence was that during an inspection on 21 November 2001, the premises at 1A and 1B Kent Road were being used as flats due to the layout of the buildings observed by him, the fact that four letter boxes were out the front and based on a conversation with one of the tenants, Peter Brown, on that occasion. 12. Also exhibited to Mr Nagle's affidavit were the form lodged with the Department of Fair Trading for a lease between CKC Pacific Pty Limited and Haydee de Gruzman for 1/1B Kent Road, the form lodged with the Department of Fair Trading for the lease between Homebush Bay Industries Pty Limited and Peter Brown for 2/1B Kent Road, North Ryde and the form lodged for the lease between Homebush Bay Industries Pty Limited and Chris Savage and Emma Howard for the premises at 1/1A Kent Road, North Ryde. Additionally, exhibited to his affidavit were Australian Securities and Investments Commission searches which showed the Defendant was the Director and primary or sole share holder of the two companies named in the lease document forms lodged with the Department of Fair Trading. There were also property title searches exhibited to Mr Nagle's affidavit which confirmed the Defendant was the owner of the premises at 1A/1B Kent Road since 1999. 13. The Defendant gave oral evidence and submissions to the effect that he had changed the configuration of the small bedrooms upstairs in 1A and 1B Kent Road to make these into an alcove with a bar, and was told at the time that he approached Council asking if this was all right that he did not need development consent to do this. He further said that any changes he had made were to accommodate the tenants at 1A and 1B simply to increase their amenity and use of the premises. Further he submitted the arrangements at 1B Kent Road were that the entire duplex was to be shared by the tenants both upstairs and downstairs and this was a common arrangement with student accommodation around Macquarie University and other universities in Sydney. I should note this evidence was completely contradicted by that of Mr Brown and Ms Howard. 14. The Defendant further submitted that during much of 2001 he and his family did not live downstairs at 1A Kent Road but did keep possessions there. Members of his family and in-laws visited for house-minding and to play piano. The thrust of his evidence was that no-one was living permanently in the downstairs unit at 1A Kent Road until he moved in with his family in late 2001. 15. Once again I should note this is contrary to the evidence of Ms Howard and Mr Brown who both gave evidence that people they thought were Asian students were living there at the time they took up residence in their respective units. 16. The Defendants further submitted that although the word "unit" does appear on the lease agreement with Mr Brown and the bond lodgment form relating to Mr Brown's lease this did not appear in later bond lodgment forms for Ms Howard and Mr Savage and for the bond lodgment forms in relation to Ms de Gruzman. 17. I note that the latter forms still refer to 1/1A Kent Road and 1/1B Kent Road. The fact that the word "unit" does not appear, does not reduce the clear implication from these forms that there were separate units at both 1A and 1B Kent Road. 18. I also note as a material fact that the Defendant agreed in cross-examination, and indeed drew on a map of the premises (exhibit B), that he had put in privacy doors at the entrance to the upstairs units in 1A and 1B and in the downstairs units of 1A and 1B Kent Road. 19. The Defendant made submissions on several occasions during the hearing to the effect that the prosecution was politically motivated, that there had been a trial by media and that he had not been treated with due process by the prosecuting Council. In relation to the due process issues in particular, the Defendant referred extensively to correspondence between the Council and himself concerning the two notices of intention to issue an order under s 121B of the Environmental Planning and Assessment Act 1979 , which were sent on 28 February 2002, and also the issuing of two orders on 28 March 2002 to the Defendant to cease using the premises at 1B Kent Road for the purpose of a residential flat building, and further to demolish or remove the kitchen facilities, and remove the lockable doors on the ground and first floor of the property at 1B Kent Road, North Ryde. 20. The Defendant was questioning the need for the service of those orders given that an inspection by the Council on 2 April 2002 found that 1B Kent Road was in compliance. That inspection had been notified to the Defendant by the Council's General Manager Environment and Planning in a letter dated 13 March 2002. In those circumstances the Defendant queried why orders dated 28 March 2002 had been issued. 21. It was also the evidence of Mr Nagle and Ms Weatherley, the two Council officers who provided affidavits, that they could not recall in the time they had worked at the Council, which in Ms Weatherley's case was six and a half years, the situation where following compliance with an order a person had also been prosecuted for unlawful development. 22. While the Defendant's comments about his treatment in this matter are clearly of concern to him I have to say that I view these comments as irrelevant in relation to this Court's consideration of whether the offence alleged on 21 November 2001 in the summons has been committed. To that end I note that I accept the entire evidence of Ms Howard and Mr Brown. To the extent that there was inconsistency with the evidence of the Defendant, I accept their version of events. Their evidence was in fact largely undisputed by the Defendant, there was no reason to doubt the truthfulness of what they said, and further their evidence is consistent as between them as to the nature of the arrangements at 1A and 1B Kent Road. This evidence together with that of Mr Nagle, Council officer, which I also accept, provides in my view overwhelming proof, definitely beyond reasonable doubt, that 1A and 1B Kent Road were being used as residential flat buildings, as defined under the Ordinance, on 21 November 2001. There is clear evidence that there were two separate dwellings at both 1A and 1B Kent Road on that date and that is clearly in breach of the Ordinance . 23. Accordingly the Prosecutor has proved its case beyond reasonable doubt and I find the Defendant guilty as charged. 24. Orders 1. The Defendant is found guilty of the offence with which he is charged. 2. Leave is granted to approach the Registrar to obtain a hearing date for penalty and costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.