Council of the City of Sydney v Li [2012] NSWLEC 156

Land and Environment Court New South Wales

Medium Neutral Citation: Council of the City of Sydney v Li [2012] NSWLEC 156 Decision date: 10 July 2012 Jurisdiction: Class 4 Before: Pepper J Decision: Inspection of premises ordered. Catchwords: PRACTICE AND PROCEDURE: Orders sought to inspect property - alleged unlawful construction and use - inspection required to ascertain state of premises prior to preparation of evidence - inspection ordered. Legislation Cited: Environmental Planning and Assessment Act 1979, ss 118B, 121B Uniform Civil Procedure Rules 2005, rr 2.1, 23.8 Cases Cited: Eurobodalla Shire Council v Gerondal (No 4) [2012] NSWLEC 146 Category: Procedural and other rulings Parties: Council of the City of Sydney (Applicant) Ms Yumeng Li (Respondent) Representation: Mr Adrian Hawkes (Applicant) N/A (Respondent) File Number(s): 40379 of 2012

Ex Tempore Judgment

The Council Seeks to Inspect Premises 1By notice of motion filed 29 June 2012, the Council of the City of Sydney ("the council") seeks an order that it be permitted to enter unit 12b, 12-26 Regent Street, Chippendale ("the premises") to enable it to exercise its functions pursuant to s 118B of the Environmental Planning and Assessment Act 1979 ("the EPAA") to inspect and make observations of the premises and, if necessary, use reasonable force to gain entry. 2The council relies on the following evidence in support of the notice of motion: (a) first, an affidavit of Mr Andrew Phillips, a council building surveyor, affirmed 18 June 2012; (b) second, an affidavit of Mr Glen Camenzuli, a senior building surveyor employed by the council, sworn 2 July 2012; and (c) third, a statutory declaration by Mr Adrian Hawkes, the solicitor for the council, affirmed 6 July 2012. 3The order comes about the following way. Pursuant to a summons filed 20 April 2012, the council seeks declaratory relief and consequential orders under the EPAA, to the effect that Ms Li is using the premises for a purpose other than its permitted use, which is a one bedroom duplex unit, without first obtaining development consent for such use. Further, it is alleged that Ms Li has failed to comply with the terms of an order issued under s121B of the EPAA. 4The s 121B order was served on Ms Li on 18 November 2011. It details unlawful construction comprising the erection of partition walls within the unit absent development consent. The order demands the demolition and removal of the unauthorised partition walls. 5When the matter came before the Court on 29 June 2012, the Court made orders for both parties to file and serve the evidence upon which they seek to rely and the matter was set down by the Registrar for final hearing on 6 August 2012. On that occasion, only Mr Hawkes appeared before the Court. In fact, Ms Li has yet to make an appearance in the proceedings notwithstanding that service has been properly effected on her. 6On 29 June 2012 the Court ordered the council to file and serve any evidence upon which it intended to rely by 20 July 2012. This evidence, Mr Hawkes submits, is to include observations concerning the recent state of the premises. It cannot be obtained absent an inspection of the premises. It is for this reason that the notice of motion is before the Court today.