Council of the City of Botany Bay v Tripolitis [2016] NSWLEC 85

Land and Environment Court New South Wales

Medium Neutral Citation: Council of the City of Botany Bay v Tripolitis [2016] NSWLEC 85 Hearing dates: 14 July 2016 Date of orders: 14 July 2016 Decision date: 14 July 2016 Jurisdiction: Class 4 Before: Pepper J Decision: See orders at [23]. Catchwords: PROCEDURE: whether second respondent correctly served with originating process – whether personal service required – whether proceedings could be discontinued as against second respondent – hearing vacated and matter adjourned. Legislation Cited: Botany Local Environmental Plan 2013 Environmental Planning and Assessment Act 1979, s 121B Uniform Civil Procedure Rules 2005, r 10.20(2)(a) Cases Cited: Ross v Lane Cove Council [2014] NSWCA 50; (2014) 86 NSWLR 34 Category: Procedural and other rulings Parties: Council of the City of Botany Bay (Applicant) John Tripolitis (First Respondent) Robyn Tripolitis (Second Respondent) Representation: Counsel: Mr Shneider (solicitor) (Applicant) No appearance (First Respondent) No appearance (Second Respondent)

Solicitors: Houston Dearn O'Connor (Applicant) N/A (First Respondent) N/A (Second Respondent) File Number(s): 2016/151803

Judgment

The Second Respondent in Civil Enforcement Proceedings Has Not Been Properly Served 1. This judgment sets out in full the reasons of the Court for vacating the final hearing of this matter on the day it was listed to be heard. The orders vacating the hearing and adjourning the proceedings were made on that day but fulsome reasons were not given due to time constraints. 2. By summons filed 23 March 2016, the Council of the City of Botany Bay ("the council"), sought declaratory and injunctive relief in respect of a failure by the first respondent, Mr John Tripolitis, and the second respondent, Mrs Robyn Tripolitis, to comply with an order issued by the council on 22 October 2013, under s 121B ("the 121B order") of the Environmental Planning and Assessment Act 1979 ("EPAA"). 3. The order was to cease using premises located at Lot B, DP 359736, 64 Pemberton Street, Botany ("the premises") as a warehouse for the distribution of clothing, a use prohibited in Zone B4 Mixed Use under the Botany Local Environmental Plan 2013 ("the LEP"). 4. The final hearing of the matter was listed for 14 July 2016 but, because of an irregularity in the service of Mrs Tripolitis of the originating process, it could not proceed and had to be adjourned.