Burwood Council v Pan Pac Investments Pty Ltd [2018] NSWLEC 110

Burwood Council v Pan Pac Investments Pty Ltd [2018] NSWLEC 110

Pan Pac was the registered owner of the Property, was aware of the s 121B order, and did not comply with its requirements to cease boarding house use or remove the plasterboard wall within the required time, including the extended period. The evidence, including Ms Wu's interview answers about individual room rental, three-month minimum leases, rent, locked rooms and shared kitchen, bathroom and laundry facilities, proved beyond reasonable doubt that the Property was being used as a boarding house within the BLEP definition. The asserted alternative use as care accommodation, existing use rights, exempt development, limitation and procedural fairness arguments did not defeat liability....

Jurisdiction
Australia
Judgment Date
31 July 2018
Procedural Posture
Class 5 Prosecution for Offences Under the Environmental Planning and Assessment Act 1979 / Principal Judgment After Pleas of Not Guilty; Determination of Guilt Before Sentencing
Outcome
Pan Pac Investments Pty Ltd found guilty on all three charges; sentencing hearing to be listed.
Legal Topics
['failure to Comply With S 121 B Order' 'unauthorised Use of Premises as Boarding House' 'failure to Demolish Internal Wall' 'failure to Comply With S 119 J Notice to Provide Information and Records' 'strict Liability' 'procedural Fairness' 'existing Use Rights' 'reasonable Excuse']
['environment and Planning' 'local Government' 'criminal Offences'] ['failure to Comply With S 121 B Order' 'unauthorised Use of Premises as Boarding House' 'failure to Demolish Internal Wall' 'failure to Comply With S 119 J Notice to Provide Information and Records' 'strict Liability' 'procedural Fairness' 'existing Use Rights' 'reasonable Excuse']

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Procedural Posture

Class 5 Prosecution for Offences Under the Environmental Planning and Assessment Act 1979 / Principal Judgment After Pleas of Not Guilty; Determination of Guilt Before Sentencing

Legal Issues

  1. 1 ['Whether Pan Pac Investments Pty Ltd failed to comply with a s 121B order to cease using 45 Cheltenham Road Croydon as a boarding house.' 'Whether Pan Pac Investments Pty Ltd failed to comply with a s 121B order to demolish the plasterboard wall covering an archway and restore the archway to its original condition.' 'Whether Pan Pac Investments Pty Ltd failed, without reasonable excuse, to comply with a s 119J notice requiring production of information and records.' 'Whether the Property was being used as a boarding house within the meaning of the Burwood Local Environmental Plan 2012.' 'Whether Pan Pac Investments Pty Ltd could rely on existing use rights, procedural fairness, privacy, exempt development, or reasonable excuse arguments.']

Ratio Decidendi

Pan Pac was the registered owner of the Property, was aware of the s 121B order, and did not comply with its requirements to cease boarding house use or remove the plasterboard wall within the required time, including the extended period. The evidence, including Ms Wu's interview answers about individual room rental, three-month minimum leases, rent, locked rooms and shared kitchen, bathroom and laundry facilities, proved beyond reasonable doubt that the Property was being used as a boarding house within the BLEP definition. The asserted alternative use as care accommodation, existing use rights, exempt development, limitation and procedural fairness arguments did not defeat liability....

Court Disposition

Pan Pac Investments Pty Ltd found guilty on all three charges; sentencing hearing to be listed.

Orders

  • ['In matter no 17/67623 Pan Pac Investments Pty Ltd is found guilty of the offence as charged against s 125(1) of the Environmental Planning and Assessment Act 1979 being Statement of Charge 2.' 'In matter no 17/67624 Pan Pac Investments Pty Ltd is found guilty of the offence as charged against ss 119M and 125(1) of...