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

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

The modified order was clear and required the gate and associated post to be reduced to no more than 1.95m above ground level irrespective of the gate's position. The evidence showed non-compliance, and Mr Chen's amenity submissions could not reopen the earlier determination; nor was there sufficient evidence to accept that he lacked capacity to pay for the work. However, because the enforceable terms were only finalised shortly before the hearing and Mr Chen genuinely believed he had complied with the original order, it was not appropriate to order him to pay the Council's costs.

Jurisdiction
Australia
Judgment Date
15 August 2008
Procedural Posture
Civil Enforcement Proceedings Under S 124 of the Environmental Planning and Assessment Act 1979 Seeking a Declaration That an Order Issued Under S 121 Zk(4) Had Not Been Complied With / Ex Tempore Judgment After Hearing
Outcome
Declaration of non-compliance and compliance orders indicated; Council's application for costs refused.
Legal Topics
['enforcement of S 121 ZK Order' 'modification of Order Under Slip Rule' 'non Compliance With Development Control Order' 'costs Following the Event']
['environmental Planning Law' 'civil Enforcement' 'costs'] ['enforcement of S 121 ZK Order' 'modification of Order Under Slip Rule' 'non Compliance With Development Control Order' 'costs Following the Event']

Case Brief

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Procedural Posture

Civil Enforcement Proceedings Under S 124 of the Environmental Planning and Assessment Act 1979 Seeking a Declaration That an Order Issued Under S 121 Zk(4) Had Not Been Complied With / Ex Tempore Judgment After Hearing

Legal Issues

  1. 1 ['Whether the respondent had complied with the order as modified under the slip rule requiring reduction of the height of the metal vehicular gate and associated post to no more than 1.95m above ground level.' 'Whether the Court should revisit amenity matters determined in the earlier Class 1 proceedings.' "Whether the respondent's asserted financial incapacity excused or affected compliance." "Whether the respondent should be ordered to pay the Council's costs."]

Ratio Decidendi

The modified order was clear and required the gate and associated post to be reduced to no more than 1.95m above ground level irrespective of the gate's position. The evidence showed non-compliance, and Mr Chen's amenity submissions could not reopen the earlier determination; nor was there sufficient evidence to accept that he lacked capacity to pay for the work. However, because the enforceable terms were only finalised shortly before the hearing and Mr Chen genuinely believed he had complied with the original order, it was not appropriate to order him to pay the Council's costs.

Court Disposition

Declaration of non-compliance and compliance orders indicated; Council's application for costs refused.

Orders

  • ['A declaration of failing to comply with the order should be made.' 'Orders requiring compliance with the modified order ought to be made, with terms to be discussed with the parties.' "No order that Mr Chen pay the Council's costs."]