Land and Environment Court of New South Wales CITATION : Auburn City Council v Hussein Hussein [2010] NSWLEC 77 APPLICANT Auburn City Council PARTIES : RESPONDENT Hussein Hussein FILE NUMBER(S) : 40966 of 2009 CORAM: Craig J KEY ISSUES: CIVIL ENFORCEMENT :- breach of s 76A Environmental Planning and Assessment Act 1979 - use for boxing gymnasium commenced without consent - recreational facility required consent - subsequent application for consent refused - use continued after notice to cease use - carrying out development without consent - use restrained by injunction LEGISLATION CITED: Environmental Planning and Assesment Act 1979 Local Government Act 1993 DATES OF HEARING: 18 May 2010 EX TEMPORE JUDGMENT DATE : 18 May 2010 APPLICANT LEGAL REPRESENTATIVES: Mr C Gough, solicitor of Storey and Gough Solicitors RESPONDENT No appearance JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES CRAIG J 18 MAY 2010 09/40966 AUBURN CITY COUNCIL v HUSSEIN HUSSEIN EX TEMPORE JUDGMENT 1 HIS HONOUR: Auburn Council (the Council) has commenced proceedings in Class 4 of the Court's jurisdiction seeking declaratory and injunctive relief against the defendant, Hussein Hussein. The Council's claim for relief is founded upon the manner in which the premises known as Unit 4, 354 Chisholm Road, Auburn, more particularly described as Lot 4 in Strata Plan 79302 (the premises), are being used. It is claimed that Mr Hussein is using the premises as a boxing gymnasium without development consent having been obtained so to do. 2 The premises comprise one of twelve industrial units which were erected pursuant to development consent DA 207/2005 granted by the Council on 20 February 2006. Condition 67 of that consent required that a further development consent, "be obtained prior to the use and/or occupation" of any of those units. 3 The Council claims that the use of the premises as a boxing gymnasium commenced some time prior to 14 May 2008. The use of the premises for that purpose was advertised on the internet. 4 Mr Hussein did not appear when the matter was called today. His name was called outside the court at the commencement of hearing, but he did not respond. Evidence has been led before me to the effect that letters were sent by the Council's solicitor to Mr Hussein, addressed to him at the premises, informing him that these proceedings were listed for hearing today. I have also received evidence from a council officer to the effect that he attended the premises on 13 May 2010 and there handed to Mr Hussein a letter which detailed the fact that the matter was listed for hearing in this Court today. I am therefore satisfied that Mr Hussein has been made aware that the hearing is to take place today. 5 The Council relies upon the evidence of Jason Mooney, a Regulatory Compliance Officer employed by the Council. Mr Mooney attended the premises on 14 May 2008 and observed the presence of gymnasium equipment together with a boxing ring standing in the premises. Mr Mooney observed three males who were boxing in that ring. In addition, signs were erected in the premises setting out fees and charges for the use of the premises as a gymnasium. Mr Mooney took photographs which showed the boxing ring and the people using it at that time. They also showed a series of punching bags attached by frames which were fixed to one of the walls of the premises. 6 Upon returning to his office, Mr Mooney undertook a search of the internet. His search revealed the existence of a web page found at the address "www.teamhussein.com" and titled "BODYPUNCH BOXING GYM, TEAM HUSSEIN". The web page identified the manager of this facility to be Hussein Hussein. The web page also identified the location of the facility by reference to a map which appears to identify a location at or near the intersection of Chisholm and Albert Roads, Auburn. A further internet search carried out by Mr Mooney on 4 December 2009 revealed a similar website headed "BODYPUNCH BOXING GYM, TEAM HUSSEIN". The search on that occasion again revealed Hussein Hussein to be the facility manager and showed the address to be Unit 4, 354 Chisholm Road, Regents Park. It has been explained to me by Mr Mooney and I accept that the subject premises are variously described as being either within the suburbs of Regents Park or Auburn. There is only one address which bears the number 354 Chisholm Road within the full stretch of Chisholm Road which runs between the suburbs of Auburn and Regents Park. 7 On 15 May 2008, the Council forwarded to Mr Hussein, addressed to him at the premises, a notice of intention to give an order pursuant to s 121B of the Environmental Planning and Assessment Act 1979 (the EPA Act) in relation to the use of those premises. The Council did not receive a response from Mr Hussein. Consequently, on 10 June 2008, the Council issued an Order to Mr Hussein under the provisions of s 121B requiring that he "cease the use of the premises as a gymnasium/boxing training facility". Again, the Council did not receive a response from Mr Hussein. 8 The premises were inspected on 12 and again on 16 September 2008. On both occasions the premises were observed to contain the boxing ring and equipment earlier observed. An "office" area was also observed within the premises which contained advertising materials for the gymnasium. The Council forwarded further letters to Mr Hussein dated 26 September 2008 and 21 November 2008, addressed to him at the premises, requesting that he comply with the Order sent to him on 10 June 2008. 9 On 27 November 2008, Mr Hussein lodged with the Council development application number 417/2008 seeking consent to use the premises as a boxing gymnasium. The Council refused that application on 29 April 2009. There were twelve grounds given for its decision which were stated in a Notice of Determination dated 29 April 2009. Those grounds included a lack of car parking spaces necessary to service the premises, having regard to the use proposed in the development application. That Notice of Determination was forwarded to Mr Hussein along with a letter from the Council dated 22 May 2009. The letter drew attention to the fact that the present use of the premises for a gymnasium must cease as directed in the order of 10 June 2008. That letter, so the evidence reveals, was delivered to Mr Hussein by Mr Mooney. 10 Mr Mooney attended the premises, in company with another Council officer, on 22 May 2009. He there had a conversation with a person he identified as Hussein Hussein. In that conversation Mr Hussein is said to have acknowledged his awareness that his development application had been refused but that he was "waiting to see what Council was going to do about it". When told by Mr Mooney that the use of the business must cease on or by Friday 19 June 2009, Mr Hussein is said to have replied, "I'm not going to cease the use." 11 Further inspections were carried out by Council staff on 19 June 2009, 13 November 2009 and 3 December 2009 when it was found that the premises continued to be used as a boxing gymnasium. The boxing ring remained and on each of those occasions people were observed to be using the ring or the punching bags located on the wall. 12 The most recent inspection of the premises by Mr Mooney occurred on 12 May 2010. At that time some eight males were observed using the premises for what appeared to be exercise activities. Two were observed to be sparring in the boxing ring and others were using the punching bags. 13 On that occasion Mr Mooney had a conversation with Mr Hussein in which the latter claimed to have provided documents or information concerning the gymnasium activities to the mayor, Councillor Hicham. Mr Mooney then searched the records of the Council but could find no record of any further development application having been lodged with it, other than the one refused on 29 April 2008. Mr Mooney reported the result of his records search to Mr Hussein on 13 May. The response of Mr Hussein was to say that he would speak to Councillor Hicham. No contact has since been had between Councillor Hicham and Mr Mooney. 14 Reference was also made in that conversation to some discussion said to have been had between Mr Hussein and the Council's general manager. Again there has been no contact between Mr Mooney and the general manager relating to the use of the subject premises by Mr Hussein. 15 The Council's claim for relief is legally founded in s 76A(1)(a) of the EPA Act. It submits that the use of the premises as a boxing gymnasium is a use of land and thus constitutes development within the meaning of s 4(1) of the EPA Act. That use is one which cannot be carried out except with development consent. As no development consent has been granted, it submits that the present use is being carried out contrary to the statutory provision. This, so it is argued, constitutes a breach of the EPA Act: s122. 16 Section 76A of the EPA Act relevantly provides as follows: " 76A Development that needs consent (1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument." 17 The planning controls applicable to the premises are those contained in Auburn Local Environmental Plan 2000 (ALEP). Clause 18 of ALEP coupled with the ALEP map indicates that the land upon which the premises stand is zoned 4(a) General Industrial. In accordance with cl 18, development for the purpose of a number of nominated uses is permissible with consent. Among the uses so nominated are "recreational facilities". The term "recreational facility" is defined in Schedule 1 to ALEP to mean: "A building or place used for indoor recreation such as a table tennis centre, squash court, swimming pool, gymnasium, health studio or bowling alley whether used for the purpose of gain or not … ." 18 The use of the premises as described in the evidence in this case would indicate it to be a building or place "used for indoor recreation" including use as a gymnasium. As such, it is development that can only be carried out with the consent of the Council. It has been so used over an extended period of time: it is a use that is neither temporary nor transitory. 19 Evidence has been given before me of the system which the Council maintains for the purpose of recording both the grant of development consents and the lodgement of development applications for such a consent. I am satisfied by reference to that evidence that since the grant of development consent on 20 February 2006 for the erection of the industrial units in which the premises are located, no development consent has been granted by the Council for use of the premises as a boxing gymnasium or any other such facility. It will also be remembered and is of relevance that condition 67 of the consent granted in February 2006 required that a further development consent be obtained before any of the industrial units could be used. 20 I am therefore satisfied that the use of the premises as a boxing gymnasium is development for which no consent has been obtained and thereby is development which has been carried out in contravention of s 76A(1)(a) of the EPA Act. As such, it involves a breach of that Act within the meaning of s 122. 21 The only matter that remains to be considered is the role of Mr Hussein in the conduct of that use. The evidence adduced by the Council does not directly establish that Mr Hussein exercises proprietorial control of the premises such that he bears responsibility for or is able to control its current use. However, the fact that he is listed on the internet site for the gymnasium as its manager; the fact that he lodged the development application with the Council in November 2008 seeking consent for its present use in his own name and the fact that when questioned by Mr Mooney on 19 January 2009, he said "I am not going to cease the use", are all facts from which a controlling interest in the conduct of the premises might reasonably and properly be inferred. Moreover, in the absence of evidence to the contrary from Mr Hussein, no proof is required by the Council that he was and remains in control of the facility in question: s 697 of the Local Government Act 1993. 22 I am therefore also satisfied that it is Mr Hussein who is responsible for carrying out the development which I have described and is doing so in contravention of s 76A(1)a of the EPA Act. By reason of that breach, it is appropriate to grant relief in accordance with s 124 of the EPA Act. 23 In determining that orders should be made I pay heed to the considerations which necessarily inform the exercise of discretion that is available to me under the provisions of the EPA Act. These considerations also inform the manner in which I am able to frame orders. The circumstance that a development application had been made for the use of the premises and rejected on grounds which, on their face, demonstrate adverse environmental consequence as a result of conducting the activity, militate against the exercise of discretion which would found the refusal of relief of any kind. 24 Accordingly I make the following orders: 1. Declare that the defendant is carrying out development at Unit 4, 354 Chisholm Road, Auburn ( the premises ), by using the premises for the purpose of a boxing gymnasium, without having obtained development so to do under and in accordance with the provision of the Environmental Planning and Assessment Act 1979; 2. Order that the defendant by himself, his employees, contractors or agents be restrained from using or causing to be used the premises at Unit 4, 354 Chisholm Road, Auburn for the purpose of a boxing gymnasium, or any other purpose without first obtaining the consent of the Council so to do in accordance with the provisions of the Environmental Planning and Assessment Act 1979; 3. Order that the defendant pay the plaintiff's costs; and 4. The exhibits may be returned. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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