Environment and planning - contempt – meaning of
"dwelling" – meaning of "household"
– where an application seeks that the respondent be punished
for contempt of court constituted by his contravention of a
previous order – where since the making of the order, the
respondent has continued to individually rent out rooms in the
house pursuant to separate rooming agreements – whether the
letting of the individual rooms in the premises is a use for a
purpose other than a single detached self-contained dwelling for
the exclusive use of one household only
Facts: This was an Application by the Council
that the Respondent be punished for contempt of Court constituted
by his contravention of orders made in July 2013.
The Respondent was the owner of a house and land at Coombabah.
The use of the house had resulted in Council taking enforcement
action against the Respondent seeking declarations and enforcement
orders. Following a mediation, the Court made orders which were not
opposed, including an order that the Respondent was not to use the
premises for any purpose other than a single detached
self-contained "dwelling" unless otherwise authorised by
an effective development permit.
Since the making of the order, the Respondent had continued to
individually rent out rooms in the house pursuant to separate
Decision: The Court held, that:
The use of the house by the Respondent was in breach of the
previous order. It could not be seriously contended that the house
was being used for the exclusive use of one household only.
The Respondent had chosen to cynically breach the order for his
financial gain. His conduct was deliberate and calculated, and it
was therefore beyond reasonable doubt that he was, and remained, in
contempt of the order.
A fine in the sum of $5,000 was an appropriate penalty. The
Court took into account the Respondent's lack of
sophistication, but also his cavalier attitude to endeavouring to
make commercial gain from his unlawful use of the house.
In terms of the Council's Application for costs in respect
of the Application, the Respondent had maintained a position which
amounted to being in contempt, despite being expressly warned of
that; it was suggested that he obtain legal advice, and he did not,
and instead proceeded to the hearing making scandalous allegations
which were offensive, irrelevant and without foundation. The
Respondent's case was barely arguable in any event.
Accordingly, the Respondent should pay the Council's costs of
and incidental to the Application on a standard basis.
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Many retail leases include a covenant to trade, requiring the tenant to open the premises for trade during certain hours.
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