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Pain J Civil Enforcement :- enforcement of s 121ZK Environmental Planning and Assessment Act 1979 order - s 121ZK order originally made by commissioner in class 1 appeal - terms of order subsequently varied under slip rule prior to hearing KEY ISSUES: Costs :- usual order that costs follow the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; 3 Council officer, Mr Konsti, has sworn an affidavit dated 14 August 2008 and attached photographs which demonstrate that the order for reduction in height of the gate and post has not been complied with. Mr Konsti was cross-examined by Mr Chen. 4 Affidavits of Mr March, solicitor for the Council, dated 24 June 2008 and 15 August 2008 attest to the Council's notification of the commencement of proceedings after three letters of warning to Mr Chen. 5 Mr Chen gave sworn oral evidence that he believed that by leaving the metal vehicular gate open he complied with the orders made by Moore C in September 2007. He considered he should be allowed to abandon the gate in the open position and that would satisfy the order as made now. Further he stated it would be costly to reduce the height of the gate and he cannot afford to do so. The impact of the gate and post has been reduced by trees growing taller and by the hedge which is in front of the gate in its open position which shielded it from the street. Finding 6 The meaning of the order as modified under the slip rule by Moore C is clear. The existing gate and southern pole must be reduced in height to 1.95m above ground level regardless of the position of the gate, in other words whether open or closed. There is clearly non-compliance with the orders as modified by Moore C in light of Mr Konsti's evidence. 7 The matters relied on by Mr Chen concerning lack of visual impact on the street if the gate is left in the open position behind the hedge and not used are concerned with the amenity issues considered by Moore C and it is not appropriate that I revisit his original decision in the way Mr Chen has done in his submissions. Moore C determined that the order reducing the height of the gate and post was appropriate in light of the amenity issues then before him. 8 I am not satisfied that I have sufficient information about Mr Chen's financial situation to enable me to conclude that he is not able to obtain a loan if he needs one to carry out the work required by the order. He is in full time employment and does not have a mortgage. I appreciate he may have other debts as a result of the recent funeral of his father. However, in the absence of specific evidence such as bank statements and tax returns I do not accept that Mr Chen has insufficient capacity to pay for the work required by the order. 9 I consider the declaration of failing to comply with the order should be made on the evidence and consider orders requiring it to be complied with ought be made. The terms of those orders require further discussion with the parties as to timing amongst other matters. Costs 10 The Council seeks its costs. The terms of the order it seeks to enforce today were only finalised as of 7 August 2008 in light of the amendment under the slip rule by Moore C. While costs usually follow the event in Class 4 proceedings such an approach on costs can be modified in appropriate circumstances. Mr Chen has given sworn evidence that he genuinely considered he complied with the order of Moore C as originally made. His behaviour in making inquiries about meeting the orders only before the hearing before Moore C in September 2007 and only after the order was amended on 8 August 2008 confirm that view. In these circumstances I do not consider it is appropriate to order that Mr Chen pay the Council's costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.