Ku-ring-gai Council v Chen [2008] NSWLEC 233

Land and Environment Court of New South Wales

CITATION : Ku-ring-gai Council v Chen [2008] NSWLEC 233

APPLICANT PARTIES : Ku-ring-gai Council RESPONDENT Peter Chen

FILE NUMBER(S) : 40626 of 2008

CORAM: Pain J

Civil Enforcement :- enforcement of s 121ZK Environmental Planning and Assessment Act 1979 order - s 121ZK order originally made by commissioner in class 1 appeal - terms of order subsequently varied under slip rule prior to hearing KEY ISSUES: Costs :- usual order that costs follow the event not made

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s124, s121B, s121ZK Uniform Civil Procedure Rules 2005 Pt 36 r 17

DATES OF HEARING: 15 August 2008

EX TEMPORE JUDGMENT DATE : 15 August 2008

APPLICANT Mr T March (solicitor) LEGAL REPRESENTATIVES: SOLICITOR HWL Ebsworth RESPONDENT In person

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Pain J

15 August 2008

40626 of 2008 Ku-ring-gai Council v Chen

EX TEMPORE JUDGMENT 1 Her Honour: Ku-ring-gai Council (the Council) has commenced proceedings under s 124 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) seeking a declaration that an order issued under s 121ZK(4) of the EP&A Act has not been complied with. The Council was represented by its solicitor and Mr Chen represented himself. The original order was made by Moore C on 28 September 2007 in Class 1 proceedings following an appeal against an order issued under s 121B of the EP&A Act by the Council to Mr Chen. 2 The Commissioner modified his order of 28 September 2007 under Pt 36 r 17 of the Uniform Civil Procedure Rules 2005 (the "slip rule") on 7 August 2008 to remove the words "(when closed)" which appeared after "southern end of the gate" so that order 2 read as follows: The order of the respondent dated 18 June 2007 is modified to read: Reduce the height of the metal vehicular gate and its associated post at the southern end of the gate to no more than 1.95m above ground level at the present location of the gate;