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. A One Bedroom Unit is Transformed into a Five Bedroom Unit 7The affidavit of Mr Phillips deposes that Ms Li, through the erection of the unlawful partitions, has transformed a one bedroom duplex into five a bedroom unit with the capacity to sleep 24 persons. 8His affidavit, together with the affidavit of Mr Camenzuli, demonstrates that on multiple occasions attempts have been made by the council to gain access to the premises in order to inspect the work that has allegedly been carried out and to determine if the s 121B order has now been complied with. The council also wishes to ascertain the current occupation status of the premises. 9Mr Camenzuli deposes to recent fruitless attempts between 11 May and 27 June 2012 to gain access to the premises. According to Mr Camenzuli, the council's records indicate that access was last obtained by the council by Mr Phillips on 24 January 2012. 10The statutory declaration of Mr Hawkes states that Ms Li has been informed that the final hearing of the summons has been listed before the Court on 6 August 2012. The statutory declaration also reveals that Ms Li has, at her last known address, been given notice of today's notice of motion. Power to Order Inspection of the Premises 11The Court has power to order an inspection of the premises pursuant to r 23.8 of the Uniform Civil Procedure Rules 2005 ("the UCPR"). That rule relevantly provides as follows: (1) For the purpose of enabling the proper determination of any matter in question in any proceedings, the court may make orders for any of the following: (a) the inspection of any property, (b) the taking of samples of any property, (c) the making of any observation of any property, (d) the trying of any experiment on or with any property, (e) the observation of any process. (2) An order under subrule (1) may authorise any person to enter any land, or to do any other thing, for the purpose of getting access to the property. ... (6) In this rule, "property" includes any land and any document or other chattel, whether in the ownership or possession of a party or not. 12This power was recently applied in Eurobodalla Shire Council v Gerondal (No 4) [2012] NSWLEC 146. 13As opined in Gerondal (No 4) (at [29]) the power to order an inspection may also be available under r 2.1 of the UCPR, which states that: The court may, at any time and from time to time, give such directions and make such orders for the conduct of any proceedings as appear convenient (whether or not inconsistent with these rules or any other rules of court) for the just, quick and cheap disposal of the proceedings. 14Having read the affidavits referred to above and having heard the submissions of the council, in my opinion it is a suitable exercise of the Court's discretion pursuant to either of those two rules to order an inspection of the premises to occur. The inspection is necessary to permit the council to file and serve its evidence prior to the imminent hearing of the summons. 15In this regard, Mr Hawkes assisted the Court by providing it with a set of short minutes of order. With some minor amendments, the proposed short minutes of order are appropriate. Orders 16Accordingly, the orders of the Court are as follows: (1) pursuant to rr 23.8(1) and/or 2.1 of the Uniform Civil Procedure Rules 2005, the council, by its servants, contractors and agents, is permitted to enter the premises (as defined above) to enable the council to exercise its functions under s 118B of the Environmental Planing and Assessment Act 1979 to inspect and make observations of the premises and, if necessary, the council can use reasonable force to gain entry; (2) pursuant to order 1 above, Ms Li is to allow the council access to the premises upon the council giving not less than three days notice in writing to her; (3) the council is to give the police three days notice of its intention to enter the premises in accordance with order 1 above; (4) such inspection of the premises is to take place no later than 5.00 pm 16 July 2012; (5) an order that Ms Li by herself, servants and agents, be restrained from doing any act which might interfere with or impede the council, either in its entry onto the premises or its remaining on the premises pursuant to these orders, or which might impede or interfere with council complying with these orders; (6) liberty to restore on 24 hours notice; and (7) the costs of today are reserved. ********** 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. Decision last updated: 11 July 2012