Chin v Lane Cove Council
[2009] NSWLEC 1153
•22 April 2009
Land and Environment Court
of New South Wales
CITATION: Chin v Lane Cove Council [2009] NSWLEC 1153 PARTIES: APPLICANT
RESPONDENT
Pinky Fung Lin Chin
Lane Cove CouncilFILE NUMBER(S): 10073 of 2008 CORAM: Hoffman AC KEY ISSUES: APPEAL :- Notice of Motion - to change Orders of 12 September 2008. LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Uniform Civil Procedures Rules 2005
Land and Environment Court Rules 2007CASES CITED: Chin v Lane Cove Council [2008] NSWLEC 1366 DATES OF HEARING: 17 March 2009 and 22 April 2009 EX TEMPORE JUDGMENT DATE: 22 April 2009 LEGAL REPRESENTATIVES: APPLICANT
Mr L Chin (Agent)RESPONDENT
Ms K Law (solicitor)
SOLICITOR
Matthew Folbigg
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESHoffman C
22 April 2009
JUDGMENT10073 of 2008 Chin v Lane Cove Council
1 This hearing was in regard to the re-amended Notice of Motion filed on 9 February 2009 by the applicant Pinky Fung Ling Chin against Lane Cove Council in regard to the Orders in appeal 10073 of 2008. The judgment in that appeal had been handed down on 12 September 2008.
2 The Notice of Motion sought changes to the Orders that had arisen, in the applicant’s submissions, from the attachment to the Orders of a plan of the front yard of his property at 11 Grace Street, Lane Cove. The plan shows the substantial concrete paving laid in the front yard, and the portions of paving the council had sought to have removed.
3 The plan came from one of the council officers during some preliminary negotiations with the applicant. The negotiations were about a possible compromise on the total removal of the pavement, such that some of it could remain. Although the plan was roughly to scale, some of the concerns of the applicant in the re-amended Notice of Motion of 9 February 2009 arose from these inaccuracies.
4 During the first part of this hearing, evidence was had from the council engineer Mr Tereschenko that in fact the plan attached to the judgment was a practical plan, although it was not properly to scale. But, he said in Order to be certain it was necessary to have an accurate plan.
5 An adjournment was allowed and the accurate plan was produced by the council. It shows that the area of pavement that would be left under the Orders, as issued, would accommodate two cars parked in front of the veranda of the house, and still enable a B99 sized vehicle parked in the carport at the front of the house, to manoeuvre behind these two parked vehicles and to exit from the site in a forward direction.
6 The ability to leave the site in a forward direction had formed part of the evidence in the original hearing because the property at 11 Grace Street is below road level. The experience of the Applicant is that, in reversing out of the driveway, there is an element of danger because of the inability to see pedestrians on the footpath or, indeed, cars in the roadway until the reversing car has actually moved over the boundary into the road reserve.
7 The final plan drawn accurately to scale was filed by the council on 17 April 2009 and, as mentioned before, shows the ability to manoeuvre cars parked on the pavement or in the carport to exit in a forward direction. At this Hearing, the Applicant has expressed satisfaction with that plan. He is now satisfied that the Orders generally as issued on 12 September 2008 could be complied with.
8 However, he did seek further clarification of item 2 of Order 2. In that section of the Orders it is stated
- “provide landscape plan by a qualified landscape architect for section 2 in item 1 above after removal of the concrete slab between your property and the adjoining owner’s property at 13 Grace Street”.
9 He is concerned about two other areas of pavement to be removed in what is identified as sections 3 and 4 of the plan attached to the Orders. Their removal would mean that access to the front veranda would be through a garden bed and a pathway would be needed within that area.
10 It was put by the respondent that it is reasonable to amend that section of the Order to include sections 3 and 4, such that a landscape plan could be provided for them as well and incorporate in it an access pathway 1.2 metres wide.
11 During the course of the hearing, the Lane Cove Council and Mr Chin for the Applicant agreed on wording for the amendment of that section of the Orders and handed it up as Short Minutes of Order. I note that the agreed wording is not entirely clear. The words “removal of the concrete slab between your property and ....13 Grace Street”, in my opinion simply refers to the paving to be removed in Order 2 Item 1. However, I leave the agreed words as is.
12 It was also noted that the original Orders gave 60 days for compliance from 12 September 2008 which, by the time of this hearing, has been passed. As a result the parties also agreed in the Short Minutes of Order to change the date of the Order from 12 September 2008 to today’s date, being 22 April 2009 and that would provide appropriate time for compliance.
13 The Applicant had also sought changes to item 6 of order 2 which had required the area, identified as section 2 on the plan attached to the Orders, to have a survey of the original ground level to overcome the council’s concern that it had been filled. The Applicant said that the evidence in this Hearing of photographs of the perimeter garden bed alongside the property boundary indicated that the existing ground level of those garden beds was original and that it had extended across the yard where the concrete pavement now rests. He put, therefore, there is no need for the survey to be carried out as the evidence is sufficient.
14 On this matter, the council would not agree to any change to the Order and therefore, under the provisions of the Uniform Civil Procedures Rules 2005 and Rule 36.15(2) being the applicable section of the UCPR, there being no agreement, I could not amend that section. During the proceedings the applicant had not pressed Rule 36.15(1) and indeed, in carrying out the provision of an accurate plan during the course of these proceedings, I believe if there was any matter of irregularity or uncertainty in the original Orders, that had now been eliminated.
15 The Applicant had sought that I make some Order as to sharing of costs of the removal of the concrete and of the proceedings. The respondent, being the Council, took me to the provisions of the Land and Environment Court Rules 2007 clause 3.10(1)(b)(v). In summary, it says a Commissioner of the Court has no power to deal with costs in regard to part 42 of the Uniform Civil Procedures Rules 2005. Therefore I have no power to make any Order as requested by Mr Chin who, at the end, sought at least, that the Order be “no Order as to costs.” However, the council did not agree to that matter and therefore, should the matter be unresolved between the parties, it would necessitate a Notice of Motion to the Registrar of this Court for determination of any costs.
16 Therefore the Orders of the Court are:
- 1. By consent of the parties under UCPR 2005 – 36.15(2) the Orders issued by the Court on 12th September 2008 are amended as follows.
2. Order 2 the first bullet point related to the DATE of the Order shall delete the matter ”12 September 2008” and substitute “22nd April 2009”.
3. Order 2 item 2 is amended to read “Provide landscape plan by a qualified landscape architect for Section 2 and Sections 3 and 4 to allow an access pathway from the veranda to the driveway of no more than 1.2m wide, in Item 1 above, after removal of the concrete slab between your property and the adjoining owner’s property at No. 13 Grace Street”.
4. The documents filed and/or tendered in this Hearing are retained on the Court’s file.
___________________
- K G Hoffman
Commissioner of the Court
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