Cumberland Council v Khoury (No 3)* [2016] NSWLEC 55

Land and Environment Court New South Wales

Medium Neutral Citation: Cumberland Council v Khoury (No 3)* [2016] NSWLEC 55 Hearing dates: 18, 22 and 26 April 2016 Date of orders: 23 May 2016 Decision date: 23 May 2016 Jurisdiction: Class 4 Before: Moore J Decision: At [143] Catchwords: CONTEMPT - use of premises as a boarding house without development consent - court orders to cease use - failure to comply - use ceases only after court orders to utility services suppliers suspending electricity and water services to premises - owner charged with contempt – owner guilty as charged CONTEMPT - carry out alterations to premises without development consent - alterations designed to facilitate use as boarding house - fire safety issues - court orders to remove unauthorised works and return premises to duplex dwelling given development consent - failure to comply - owner charged with contempt - continuing failure to comply - owner guilty as charged CONTEMPT - characterisation of contempt - failure to purge contempt - contempt contumacious SENTENCING - claim of provision of affordable housing - whether claim correct or activity undertaken for financial gain - continuing contempt by failure to remove unauthorised works - appropriate to provide opportunity to purge contempt - alternatives are to rectify premises as ordered or seek building certificate for premises and consent for use as boarding house - sentencing deferred for six months to permit contempt to be purged SENTENCING - fitness for full-time custodial sentence if warranted - presentence report ordered Legislation Cited: Boarding Houses Act 2012 Environmental Planning & Assessment Act 1979 Evidence Act 1995 Fines Act 1996 Holroyd Local Environmental Plan 2013 Land and Environment Court 1979 Cases Cited: Ashfield Municipal Council v Australian College Of Physical Education Ltd (1992) 76 LGERA 151 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Ireland v Cessnock City Council [1999] NSWLEC 250; 110 LGERA 311 Mosman Municipal Council v Kelly (No 3) [2009] NSWLEC 92, 167 LGERA 91 Warlam Pty Limited v Marrickville Council [2009] NSWLEC 23, 165 LGERA 184 Category: Principal judgment Parties: Holroyd City Council (Applicant) Robert Khoury (Respondent) Representation: Counsel: Mr M Fozzard, barrister (Applicant) Mr R Khoury (Respondent)