Holroyd City Council v Khoury [2015] NSWLEC 17

Land and Environment Court New South Wales

Medium Neutral Citation: Holroyd City Council v Khoury [2015] NSWLEC 17 Hearing dates: 11, 12 February 2015 Decision date: 12 February 2015 Before: Pain J Decision: See paragraph 31 Catchwords: CIVIL ENFORCEMENT – declarations made of unlawful boarding house use at residential premises –consequential orders to cease and restrain use of premises for boarding house use made Legislation Cited: Environmental Planning and Assessment Act 1979 s 76A, s 76B, 121B, 121G Holroyd Local Environmental Plan 1991 Holroyd Local Environmental Plan 2013 State Environmental Planning Policy (Affordable Rental Housing) 2009 Cases Cited: Warringah Council v Sedevcic (1987) 10 NSWLR 335 Khoury v Holroyd City Council [2013] NSWLEC 1236 Category: Principal judgment Parties: Holroyd City Council (Applicant) Robert Khoury (Respondent) Representation: Counsel: Mr M Wright (Applicant) Mr Khoury (in person) (Respondent)

Solicitors: Matthews Folbigg Pty Ltd (Applicant) File Number(s): 40945 of 2014

EX TEMPORE Judgment 1. Holroyd City Council (the Council) has filed a summons which seeks two declarations of carrying out prohibited work or work requiring development consent without that consent pursuant to s 76A and s 76B of the Environmental Planning and Assessment Act 1979 (EPA Act) at 36 Frances Street South Wentworthville (the premises) reflecting changes in the planning instruments applying to boarding houses before and after 5 August 2013 in the Holroyd local government area. The premises are owned by the Respondent Mr Khoury. A consequential order for removal of all structures erected on the land not in conformity with consent 2003/1068 is also sought. That 2003 development consent allows a dual occupancy on the premises in accordance with approved plans. 2. An order is also sought that the current boarding house use of the premises by Mr Khoury cease within 14 days. This will result in nine or ten people having to leave the premises according to Mr Khoury's evidence. A letter giving notice of these court proceedings and their possible consequences as provided for under s 121G of the EPA Act was hand delivered to occupants or left under their doors at the premises on 4 December 2014 by the council officer Mr Ferguson as ordered by this Court on 27 November 2014. 3. The evidence confirms that the structure on the premises that has been built provides for ten separate areas of occupation most if not all of which are rented out at any one time by Mr Khoury at a rent of $250-$300 per week. At least some of the building work carried out by Mr Khoury is not in conformity with the plans granted development consent in 2003. The use of the premises is not as a dual occupancy. None of these matters appear to be contested by Mr Khoury and it is hard to see how they could be given the evidence before me.