Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379

Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379

The appeal was dismissed because, on the proper construction of the Waverley LEP, backpackers accommodation was concerned with the actual use and characteristics of the premises rather than with a legal requirement limiting stays to two months. The trial judge was entitled to find beyond reasonable doubt, from the combined circumstantial evidence of resident turnover, transience, seasonality, shared accommodation, traveller-oriented websites, and statements made by or attributed to Mr Rappaport, that both premises were used as backpackers accommodation in breach of the consent orders.

Jurisdiction
Australia
Judgment Date
06 November 2014
Procedural Posture
Appeal Concerning Civil Contempt Findings for Alleged Breach of Consent Orders Restraining Use of Premises for Backpackers Accommodation / Court of Appeal Appeal From Decisions of Biscoe J in the Land and Environment Court; Appeal Dismissed
Outcome
Appeal dismissed.
Legal Topics
['use of Building' 'backpackers Accommodation' 'temporary Accommodation' 'waverley Local Environmental Plan 1996' 'civil Contempt' 'consent Orders' 'circumstantial Evidence' 'construction of Defined Terms']
['environment and Planning' 'civil Procedure' 'statutory Interpretation' 'contempt of Court'] ['use of Building' 'backpackers Accommodation' 'temporary Accommodation' 'waverley Local Environmental Plan 1996' 'civil Contempt' 'consent Orders' 'circumstantial Evidence' 'construction of Defined Terms']

Case Brief

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Procedural Posture

Appeal Concerning Civil Contempt Findings for Alleged Breach of Consent Orders Restraining Use of Premises for Backpackers Accommodation / Court of Appeal Appeal From Decisions of Biscoe J in the Land and Environment Court; Appeal Dismissed

Legal Issues

  1. 1 ['Whether the evidence established beyond reasonable doubt that the premises were used as backpackers accommodation as defined by the Waverley Local Environmental Plan 1996.' 'Whether the definition of temporary accommodation required proof of a legal prohibition preventing a person from staying for more than two months, or was directed to actual use and duration of occupation.' 'Whether the trial judge erred in drawing inferences from circumstantial evidence, including evidence of turnover, transience, seasonality, shared accommodation, websites and statements made by Mr Rappaport.' 'Whether any adverse reasoning could be drawn from the appellants not giving evidence in civil contempt proceedings.']

Ratio Decidendi

The appeal was dismissed because, on the proper construction of the Waverley LEP, backpackers accommodation was concerned with the actual use and characteristics of the premises rather than with a legal requirement limiting stays to two months. The trial judge was entitled to find beyond reasonable doubt, from the combined circumstantial evidence of resident turnover, transience, seasonality, shared accommodation, traveller-oriented websites, and statements made by or attributed to Mr Rappaport, that both premises were used as backpackers accommodation in breach of the consent orders.

Court Disposition

Appeal dismissed.

Orders

  • ['Dismiss the appeal.' "Order that the appellants pay the respondent's costs in this Court."]