Land and Environment Court New South Wales

• Medium Neutral Citation: Council of the City of Sydney v Li (No.2) [2012] NSWLEC 184
• Hearing dates: 6 August 2012
• Decision date: 06 August 2012
• Jurisdiction: Class 4
• Before: Sheahan J

Decision

Declaration and Orders made as sought by Applicant. See par [16].

• Catchwords: CIVIL ENFORCEMENT: Owner failed to comply with an order of Council - works use not approved by Council - respondent failed to appear
• Legislation Cited: Civil Procedure Act 2005; Environmental Planning and Assessment Act 1979; Legal Profession Act 2004; City of Sydney Boarding Houses Development Control Plan 2004
• Cases Cited: Council of the City of Sydney v Li [2012] NSWLEC 156; Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
• Category: Principal judgment
• Parties: Council of the City of Sydney (Applicant); Yumeng Li (Respondent)
• File Number(s): 40379 of 2012

EXTEMPORE Judgment

1 These proceedings concern the unauthorised use and alteration of residential premises, being Lot 13 Strata Plan 75028, owned by the respondent, and known as Unit 12B, 12-26 Regent Street, Chippendale.

2 The relevant development consent (D/2002/920/D, dated 17 March 2003, and modified 10 March 2005) approved Lot 13 as a two-storey one-bedroom (duplex) unit.

3 Pursuant to orders made ex parte by Pepper J on 10 July 2012 ([2012] NSWLEC 156), the Council inspected the premises more closely and filed additional evidence in support of its attempt to enforce a section 121B order which it issued to the respondent owner on 18 November 2011.

4 The respondent has not responded to letters from the Council, nor that order. Nor has she filed an appearance or any other document in these proceedings. She again failed to appear before the court when the matter was called today.

5 Like Pepper J, I am satisfied that the respondent had been served with all the materials upon which the Council relies, and has been notified of today's final hearing of the proceedings, and, in substantial detail, of the relief which Council seeks, including its costs to date (see now Exhibits C1 and C2).

6 What the evidence before the court today establishes is that the premises have, without approval, been used, partitioned, and extended into the common property of the strata scheme, to provide seven bedrooms, containing beds for eleven persons. The court has the benefit of various plans and photographs of these works.

7 Planning and Building officers of the Council (Andrew Phillips, Glen Camenzuli, and Christopher Shortt) inspected Council's records, as well as the premises. They have deposed to their findings, and expressed relevant expert opinions about the work done without consent, and the unauthorised use of the premises. I am satisfied of their expertise, and that the premises operate as a boarding house, the occupants of which pay rent to an agent of the owner on an individual basis.

8 Both the development and the use of the premises are clearly unauthorised, and do not comply with City of Sydney Boarding Houses Development Control Plan 2004.

9 The illegal extension of the apartment into adjacent common property on the upper level has now been taken up by Council with the body corporate, and is not the subject of these proceedings.

10 However, the whole of the premises, including as so extended, and their present use, constitute a threat to the health and amenity of any occupants, and pose a serious risk to them in case of fire.

11 Under the applicable planning regime the unauthorised building works within Lot 13 and the use of the premises as a boarding house are permissible with Council's consent, but there is no record of any relevant consent having been sought or obtained. The work is not "exempt or complying development". Mr Shortt opines (par 22(e) of his affidavit) that officers would "not recommend Council to grant development consent for either the use or the erection of the partition walls".

12 All the Council officers opine that all of the relevant works are unacceptable, except perhaps for the addition of a second bathroom on the upper level within Lot 13. The section 121B order required their demolition by 16 December 2011, but that order was neither appealed nor complied with.

13 The Council has taken a responsible position in the proceedings, and the declaration and orders it seeks are appropriate. The interests of occupants (observed to be, at least mainly, young females of Asian appearance, some with limited English) are sympathetically addressed, and the court is prepared to grant the relief in the form Council notified to the respondent.

14 The court is also satisfied that the draft bill of Council's costs served on the respondent is also appropriate, and will exercise its power to make a quantum order pursuant to s 98(4)(c) of the Civil Procedure Act 2005, s 366 of the Legal Profession Act 2004, and the principles summarised in Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23.

15 I will annex to the formal orders copies of the plans attached to Mr Camenzuli's affidavit of 23 July 2012, as fols 15 and 16, which clearly delineate (in yellow) the works to be removed from within Lot 13, as well as the bathroom facilities on the upper level not intended to be affected by Order 4, and (in purple) the works done in the adjacent space.

Orders

16 The court makes the following Declaration and Orders:

A.A declaration that the Respondent has failed to comply with the terms of an Order issued pursuant to item 2(a) in the Table to Section 121B of the Environmental Planning and Assessment Act 1979, dated 18 November 2011 ('the s 121B order'), relating to premises at Lot 13 in SP 75028 and known as Unit 12B, 12-26 Regent Street Chippendale ('the premises').

B. The Court makes the following orders:

1. The Respondent by herself, her servants, tenants or agents is restrained from using the premises except in accordance with the terms and conditions of development consent D/2002/920/D or such other development consent as may in future be granted.

2. Order 1 is suspended for a period of one month from the date of these orders so as to allow the Respondent within that period to terminate the occupation of the current occupants of the premises.

3. The Respondent by herself, her servants, tenants or agents is to remove the partition walls in the premises shown marked in yellow on the attached Level 1 and Level 2 plans ('the unauthorised works') within a period of two months from the date of these Orders.

4. Council by its nominated officers, contractors and agents, shall be entitled to enter the premises between the hours of 7am and 6pm Monday to Friday from the date first entered under these orders and Council shall be entitled to so enter the subject premises until the Order is complied with to Council's satisfaction.

5. If the unauthorised works have not been removed in their totality within two months of the date of these Orders then the Council of the City of Sydney is ordered pursuant to s 121ZJ(11) of the Act, to execute Council's functions under s 121ZJ by carrying out the work which is required to be carried out by the s 121B Order.

6. The Respondent is to pay the Applicant's associated costs and expenses of carrying out these Orders pursuant to s 121ZJ of the Act.

7. The Applicant is to give the local police three days' written notice of its intention to enter the premises in accordance with these Orders for the purpose of carrying out the works.

8. The Respondent, by herself and by her servants and agents is restrained from doing any act which might interfere with or impede the entry by the Applicant, its servants, contractors and agents on the premises and then remaining on the premises pursuant to these orders and which might interfere with or impede them in complying with these orders.

9. The Respondent is to pay the Applicant's costs of the proceedings to date fixed by the Court at $8,761.

10. The Court grants liberty to Council to apply to relist the matter on 48 hours notice, including for the Court to consider specifying in due course the amounts in Order 6.

11. Exhibits are retained.

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Decision last updated: 07 August 2012